What are registrable designs?
Two different kinds of designs, aesthetic and functional, can be given registered protection:
- An aesthetic design is the shape, pattern, configuration or ornamentation of an object. Any features which are necessary for the article to perform a function are excluded from protection. In other words, the protectable part of the design has a purely aesthetic value.
- A functional design pertains to an article’s shape, pattern or configuration, all or some of the features of which are dictated by the function the article is to perform.
‘Configuration’ means an arrangement of parts into a particular form. It originates from two Latin words:
- cum — meaning ‘together with’
- figura — meaning ‘shape’ (As someone might say: ‘Wow, she has a lovely figure!’)
It can be quite tricky, sometimes, to distinguish between aesthetic and functional designs, and the same design can be registered as both. In summary, however, design registrations are granted for a shape, pattern, configuration, or ornamentation which can be applied to an article.
An aesthetic design is any design applied to any article, whether for the pattern or the shape or the configuration or the ornamentation thereof, or any two or more of those purposes, and by whatever means it is applied, having features which appeal to and are judged solely by the eye, irrespective of the aesthetic quality thereof.
An example of an aesthetic design is shown below. These are two drawings, from registration number A2009/01588 in the name of Yair Shimansky, representing a woman’s ring. Because a diamond can be clasped between the two outside rings, and mounted underneath on the middle ring (as you can imagine) it can also be a functional design.
Three-dimensional view (left), and top view of a ring (right).
A functional design is any design applied to any article, whether for its pattern or shape or configuration, or any two or more of those purposes, and by whatever means it is applied, having features which are necessitated by the function which the article to which the design is applied, is to perform, and includes an integrated circuit topography, a mask work and a series of mask works.
There are some subtle differences in the requirements for these two types of designs, but there are two fundamental requirements which apply to both.
First, if the article (featuring the design) cannot be manufactured repeatedly in an industrial process, the design is not registrable.
Read section 14(4) of the Designs Act at: http://www.cipc.co.za/index.php/legislation/acts/
Second, the design must be new. The aspect of novelty is a very important part of the whole design system. It often features in enforcement proceedings and we will take a closer look at this in a few sections from now.
In addition:
- An aesthetic design must be ‘original’. This just means it is the result of the author’s own creative work, and that they have spent skill, time and effort in its creation. In other words, the author has not copied it from somewhere.
- A functional design must not be ‘commonplace’. This means the design must not be trivial, ordinary, or one which does not attract the attention of those involved in the particular field of business.
To summarise — for a design to be registrable:
- The article (to which the design relates) must be capable of being multiplied by an industrial process;
- The design must be new;
- If it is an aesthetic design, it must also be the result of the author’s own intellectual endeavour;
- If it is a functional design, it must not be commonplace.