To file a design for your product, it must be new and original. We’re going to discuss the basics of registered designs including:
- The difference between a registered design and a patent;
- The requirements to register a design;
- The two different types of registered designs;
- Duration of protection of a registered design.
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1. Registered Designs Versus Patents
When we think about protecting a product or protecting an idea, we immediately think about a patent. But it’s not always as easy as that; not all products are patentable.
In order to patent your product, it must be novel, but it must also be inventive. Novel means that it must not exist anywhere else in the world. And inventive means that it must not be obvious to a person who is skilled in the field of your invention.
So if your idea is not novel, but the product you designed looks completely different from anything else on the market, you could protect what your product looks like with a registered design.
How is the protection provided by a Patent different from that provided by a Registered Design?
A patent protects the broader or general idea behind your invention, and in particular, the features of your invention that make it unique. Whereas a design protects what your product looks like. A design can also prevent someone else from selling and manufacturing exact copies of your product.
So a patent definitely provides wider or “stronger” protection compared to a design, because it’s not limited to the shape and look of your product. But again, not all products are patentable.
Let’s consider the Pizza Braai example (watch the video above for more info). The idea of baking a pizza on a braai fire is not new. In fact, we’ve used a different kind of pizza oven in one of our other videos. Therefore, we can’t patent the Pizza Braai.
In order to rule out whether something is patentable or not, patent attorneys consider what already exists in a particular field of an invention, and whether this new invention would be obvious to a person who is an expert in that same field.
2. The Requirements to Register a Design
To file a design for your product:
- It must be new and original;
- Your product must look different from any other product on the market;
- It must also be capable of being produced by an industrial process.
Is a product still considered new if you have already started marketing or selling it?
The answer to that question is no, technically not, because then your product already forms part of the market, and is known to the public.
However, in terms of the South African Designs Act, we have something called a grace period, which allows you to file a design for your product up to six months after you’ve first made your product public.
3. The Two Different Types of Registered Designs
Designs are further classified as being functional designs or aesthetic designs.
Functional designs are for products that look a particular way in order to perform a specific function.
The example we discuss in the video, the Pizza Braai, is a functional design because it has multiple features that allow it to be able to cook a pizza. For example, it has an area on top for you to place wood or coal in order to provide heat to cook the pizza. It also has a drawer in which to place the pizza. Plus it’s pretty durable. So you would buy a Pizza Braai because you like making and eating pizzas, not necessarily because you think it’s a good looking product.
Aesthetic designs are for products that look a particular way purely for the purposes of being appealing to the customer. For example, a jewelry designer could register an aesthetic design for his new ring design. The ring does not look the way it does to fulfill a particular function. It looks that way because the designer wanted to create something the client would fall in love with – because of what it looks like, its aesthetics.
4. Duration of Protection of a Registered Design
The term of protection for a functional design is 10 years, whereas for an aesthetic design, it is 15 years. And just as a reminder: a patent provides 20 years’ protection.
So to summarize, compared to a patent, a design provides narrower protection, and for a shorter period of time, but it has less stringent requirements for registration.
Designs are also a lot cheaper than patents because it requires a lot less time and energy from a patent attorney. Furthermore, designs are also a lot easier to enforce because it is a more “black and white” scenario compared to a patent where you have that subjective element of inventiveness.
And since it’s easier to enforce, it’s also cheaper to enforce.
For more information about patentability, check out our blog about 3 Important Patent Concepts.
For more examples of registered designs and information about why an entrepreneur should register a design, check out our Registered Design Fundamentals blog.
And don’t forget to order your own Pizza Braai.