Validity of design registrations

Novelty

As for an invention, to be registerable and valid both an aesthetic and a functional design must be new. In essence, this means, firstly, that the design should not already have been disclosed to the public or used by others anywhere, and secondly that you should not have disclosed the design in any way before filing an application for a registered design. The definition of novelty in the Designs Act is somewhat more complex and for further information please click hereto download our pamphlet on Registration of Designs.

Although novelty (or ‘newness’) is a requirement, the Designs Act does allow you to disclose your design before filing a design application provided that you file the design application within six months of the disclosure. This date is referred to as the ‘release date’. However, there are potential problems associated with this if you later want to file foreign design applications based on your South African filing because valid design protection may no longer be possible in most foreign countries. For further information please click here to download our pamphlet on Registration of Designs

Originality/not commonplace

Apart from the requirement of novelty, the Designs Act also requires that an aesthetic design should be original, while a functional design should not be commonplace in the art.  These concepts as used in the 1993 Designs Act have not yet been interpreted by our courts.

Please also note the following:

If an article having a design which you want to protect is made available to the public before a patent application for that article is filed in South Africa or elsewhere, it will thereafter no longer be possible to obtain valid patent protection in South Africa or in most foreign countries, for any inventive features of the design or article.

If both patent and registered design protection are required, it may be advisable to file patent and registered design applications simultaneously.