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The illusive class 32 – Design Protection Considerations for Shop Layouts in South Africa

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Published Date: June 18, 2024

Shop layouts play a significant role in attracting and retaining customers. The way a store or establishment is designed can have a substantial impact on consumer behaviour and brand identity. The risk of having your unique shop layout copied by competitors is a valid concern. In South Africa, an intellectual property instrument in the form of design registrations can possibly help protect the layout of a store or establishment.

What is a Registered/Industrial Design?

Design registration is an intellectual property right that can be obtained when a new and original design, which is capable of being reproduced through an industrial process, is applied to an article of manufacture. To be eligible for protection, the design should meet the following requirements:

Novelty: In the context of South African law, the design must be new and not have been disclosed anywhere in the world, either through oral or written descriptions, more than six months prior to the filing date of an application for protection of the design.

Originality: The design should be original and should be the result of the author’s creative effort and not a slavish copy of someone else’s work.

Industrial Reproducibility: The design must be capable of being reproduced by an industrial process. This doesn’t necessarily mean a complex mechanised process; even a simple method of reproducing articles of manufacture can qualify.

Position in South Africa – Issues Surrounding the Protection of Shop Layouts

In South Africa, there are certain challenges when it comes to protecting shop layouts through design registration:

Locarno Classification System: The Locarno classification system categorises designs into classes and subclasses according to various recognised articles of manufacture. The international Locarno classification system has 32 classes ending with sub class 32-02 which includes designs applied to the layout of an interior of a room. Although the South African equivalent of the Locarno classification system also has 32 classes, it does unfortunately not include subclass 32-02, but ends with subclass 32-01, focusing on designs applied to “graphic designs, symbols, logos, and surface patterns.” The omission of sub-class 32-02 in the South African classification system has left a gap in the law of registered designs in South Africa.

Despite this gap, there is some room for interpretation of the scope of class 32 as it applies in South Africa. One possible argument could be that the inclusion of Class 32 in the South African classification system implicitly covers subclass 32-02 as well, despite the absence of specific mention.

Reproducibility by an Industrial process: On the question of whether a shop lay out qualifies as an article of manufacture that can be reproduced by an industrial process, it could be suggested that arranging a shop layout in a particular order that can be replicated in various settings does constitute an industrial process, as it involves a systematic and reproducible approach in arranging items of manufacture in a definite order.

Practical Approaches for Protecting Shop Layouts in South Africa

While the legal principles in South Africa concerning the protection of interior layouts of rooms is still developing, there are practical steps prospective design applicants could take to safeguard their shop’s unique design:

File a Design Application: Consider filing a design application in Class 32, even though subclass 32-02 is not explicitly included and possibly file a design application in another class that could cover a design that is applied to layout of a room. In addition, design registration could be extended to the individual elements/articles of manufacture which form part of the layout.

Explore other IP instruments: In addition to registered designs, consider utilising other intellectual property instruments, such as trade marks. In some territories, distinct shop layouts have been protected as 3D trade marks. This additional layer of protection could further help safeguard a shop’s unique look.

In conclusion, while there are some uncertainties in the South African legal framework for protecting shop layouts, a combination of design registration, trade mark protection, and vigilant monitoring can provide a practical approach for preventing others from unduly benefiting from a designer’s creative efforts.

Thapelo Mmotong
Partner | Patent Attorney

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