Registrability Requirements

“IP is like potential energy – the output depends on the force applied.  Make your IP work for you.” – Aoife Butler

Registrability Requirements

  1. An industrial design registration protects an article of manufacture for one or a combination of the features of Shape, Pattern, Configuration and/or Ornamentation of the article, irrespective of the aesthetic quality of the design. A design registration does not protect the technology concept behind a design (as patents do), but instead protects the embodiment of an article against reverse engineering.
  2. The South African Designs Act provides for two types of design registrations:
      • Aesthetic design registration – i.e. registered for an article in respect of the features of shape, pattern, configuration and/or ornamentation, insofar as those features appeal to and are judged solely by the eye;
      • Functional design registration – i.e. registered for an article in respect of the features of shape, pattern, configuration and/or ornamentation, insofar as those features are necessitated by the function that the article is intended to perform.
  3. Design registration process is a one-step process and must be undertaken once the features of shape, pattern, configuration and/or ornamentation have been finalized. For a design registration to be valid, it needs to satisfy, inter alia, the following requirements on the priority date of the application (i.e. the date on which a first design application in respect of the article is filed in a convention country):
      • Absolute Novelty – i.e. means that the design must never have been made available to the public, anywhere in the world, by anyone, whether through written or oral description, through use or in any other way; and
      • Originality – i.e. means that for aesthetic design applications, the design must have been originated by the author; or
      • Not commonplace in the art – i.e. means that for functional design applications, the design must be more than an obvious alternative to existing designs.
  4. South Africa is a party to the Paris Convention, which provides for the right of priority. Therefore, where a first design application is filed in one of the contracting states (e.g. South Africa), the applicant may, within a period of 6 months, apply for a design registration in any other contracting state and such later application(s) will be treated, in such contracting state(s), as if they had been filed on the same day as the first application.
  5. It is not always easy to know for certain if a design satisfies the novelty and originality or non-commonplace requirements for registrability. However, we can conduct international technology searches for prior technologies and disclosures relating to a design.  Please contact us for a detailed quotation.

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