South African design law includes a number of peculiarities presenting opportunities for protection that are not available elsewhere, but that also require careful consideration to ensure that suitable protection is obtained in each case.

There is currently no examination of design applications, with the result that deficiencies in the applications are not identified during the prosecution process and the design proprietor has to rely on filing the attorney’s advice to avoid invalidity of the design registration.

Some of the peculiarities of South African design law that require particular attention (and that are frequently applied incorrectly) are the distinction between “aesthetic” and “functional”, the exclusion of design protection for “spare parts” and protection of multiple articles as a “set of articles”.

Very few design matters proceed to hearings in the High Court, but each of the attorneys in our firm have been involved in the enforcement of design rights, whether representing proprietors or parties challenging design rights and we apply our enforcement experience when advising clients on filing design applications.