Two recent European IP decisions are a welcome reminder of that
much-overlooked area of IP law: registered designs. If patent
protection is primarily about functionality, design protection is
primarily about product appearance (more on this later). These
European cases are worth discussing because there are very few
court decisions on registered designs in South Africa. They are
also worth discussing because they highlight two fundamental
aspects of design law. They further highlight a very important
difference between design law in South Africa and design law
elsewhere.
Novelty
The first of the fundamental aspects highlighted is novelty. A
design can only be registered if it is new. Section 14 of the South
African Designs Act, 1993 talks of a design having to be
"new" and "original", and it goes on to say
that a design is new if it "is different from or if it does
not form part of the state of the art" prior to the
filing.
