1. Filing And Exploitation

We draw your attention to the following:

1.1 Definitive Statement
Please consider the definitive statement.  The monopoly right afforded by a registered design is defined by the definitive statement with reference to the representation of the design.  If there are any queries regarding the definitive statement, please let us know immediately.

1.2 Class of Registration
Please note the class in which the design application has been filed.  In this regard please refer to our pamphlet on the registration of designs (available on our website).  The monopoly right afforded by a registered design is limited to application of the design to articles which fall within the class in which the design has been registered.  If the design is applied to an article which is not included in the class or classes in respect of which the design has been registered, then such article will not fall within the scope of the protection provided by the registered design.  Where a particular design can be applied to articles which are in different classes, separate design applications should be filed in the different classes.  If there are any queries regarding the class or classes, it is imperative we be advised immediately as it may be possible to obtain protection in an additional class or classes by filing further design applications in such class or classes.

1.3  Registration in Part A and/or Part F:
Aesthetic designs are registered in Part A while functional designs are registered in Part F.  Please refer to the definitions of functional and aesthetic designs in our pamphlet.  Some articles are eligible for registration in both Part A and Part F.  If there are any queries regarding the part in which this design has been registered, please advise us immediately.  A design application may be amended from a Part A to a Part F application, or vice versa, only while the application is still pending, i.e. prior to registration.  It is possible, in terms of a recent amendment to the Design Act, to file in another part (A or F) if protection has not already been obtained in both parts A and F.

1.4 Subject to the above, exploitation of this design in the Republic of South Africa may now be commenced, provided that there is no prior subsisting copyright, registered design or patent which may be infringed by the exploitation of this design.

1.5 The Registrar of Designs will in due course register the design.  Thereafter advertisement of registration must be effected in the Patents Journal.  The Registrar will then issue the official design registration certificate.  It will be forwarded upon receipt.

 

2. Novelty

We draw attention to the definition of “new” in the Designs Act 195/1993 (see our pamphlet on the registration of designs).  The application has been filed on the assumption that as far as the applicant is aware the design is “new”.  The fact that we have undertaken to file this application should not be interpreted as an indication or guarantee that a valid registered design will be obtained.

 

3. Functionality

We draw attention to the definition of “design” in the Designs Act 195/1993 (refer again to our design pamphlet).  In respect of aesthetic designs in Part A, please note that any feature of an article insofar as such feature is necessitated solely by the function which the article is intended to perform, or a method or principle or construction, shall be excluded from the rights afforded by the Designs Act.  Please note further, in respect of a functional design in Part F, that in the case of an article which is in the nature of a spare part for a machine, vehicle or equipment, no feature or pattern, shape or configuration of such article is afforded protection by the Designs Act by way of a Part F registration.

 

4. Design Protection Abroad

If design protection is required in any country outside South Africa, it is essential that a corresponding design application be filed in such country either as a Convention design application or as a non-Convention design application while the design still meets the novelty requirements for the country concerned.  A Convention design application must be filed within six months of the date of filing of the South African design application.  If corresponding design protection is required outside South Africa, it is essential that we be advised as soon as possible, as registration of the South African design (which often occurs very early) can destroy the novelty for a number of countries.  We shall then advise you more fully.  If we are not specifically instructed in this regard at an early date, we shall assume that design protection is required in South Africa only.  Please note that a South African registered design does not automatically extend to Namibia, or to any other country.

 

5. Marking

Articles having the design applied thereto (and preferably advertising material of such articles, catalogues, and the like) should be appropriately marked otherwise infringers may successfully avoid paying damages for infringement by pleading innocence.  The marking may include:

5.1  the words “Republic of South Africa” or “RSA”;

5.2 words such as “Design Application”, “Design”, “Registered Design” or any suitable abbreviation thereof, to indicate design protection; and

5.3  the official number.

 

6. Developments And Improvements

Should a proprietor make changes to the appearance of an article protected by a registered design, the question arises as to whether the changed article is covered by the original design registration, or whether a new design application should be filed.  The answer to this depends on a number of factors, including the extent of the alterations and the scope of the nearest prior art.  Please inform us if changes are made so that we can advise you fully.

 

7. Change Of Address

Please keep us advised of any change of your address.