By law, all products on market are as different as ‘Apples’ and oranges
SANDTON – Are you aware of the law on the protection of a product's design?
The law protects products on the market so that competitors do not copy each other’s ideas and designs.
It even protects the exact shape of each individual product, and attorney Tyrone Walker explains why this section of the law is so interesting.
“We have all heard recently about the court battles between Apple and Samsung and the alleged copying of each other’s products that’s going on. These two companies are recognised all over the world, and any allegations of copying products are bound to lead to a heated court battle,” he said.
In terms of the law, the exact shape of a product, for example an Apple iPhone, is protected.
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“Shapes of products can be protected by filing either a trademark or design application. There are two types of designs
in terms of our law, [which are] aesthetic and functional designs.”
He said aesthetic designs appealed to the eye, irrespective of the quality. A functional design will have certain functional features that are needed for the product or article to perform.
“An example of an aesthetic design is the shape of a vehicle. A toilet seat or inhaler can be protected by means of a functional design. “The protection for an aesthetic design is limited to 15 years, and 10 years in the case of a functional design. It is important to note that a trademark can be renewed every 10 years.”
He explained an interesting legal case: “A US jury in 2012 declared that Samsung had copied elements of the iPhone’s design, including rounded corners of the device and the ‘chiclet’ layout of icons on the screen.
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“When a third party infringes a design patent, the law requires that person to compensate the owner of the patent. In the US, the courts can require the infringer to pay the patent owner ‘the extent of his total profit’ of the ‘article of manufacture’ found to be infringing.”
Walker stressed that the profits of the Apple case could amount to hundreds of millions of dollars, and Samsung would be liable to pay this amount.
Should an individual create a unique product, Walker recommends that the product is protected before someone else copies it.
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