WHAT IS AN INDUSTRIAL DESIGN?
In terms of the Industrial Designs Act [Chapter 26:02] Section 2 hereinafter referred to as “the Act” a design is defined as
“design” means
Features of shape, configuration, pattern or ornamentation applied to an article by any industrial process or means, being features which in the finished article appeal to and are judged solely by the eye, but does not include a method or principle of construction or features of shape or configuration which are dictated solely by the function which the article to be made in that shape or configuration has to perform”
Put simply an industrial design refers to the outward or physical appearance of an object or article.
DESIGNS THAT ARE REGISTRABLE
In terms of Section 6(2) of the Act, it is stated that for a design to be deemed registrable it must be new or original.
WHAT DEEMS WHETHER A DESIGN IS NEW OR ORIGINAL?
Section 6(3) of the Act highlights that a design shall be said to be new or original where on or before the date of application for registration of the design a design which differs from such design only in immaterial details or in features which are variants commonly used in the trade, was not
- known or used in Zimbabwe by anyone other than the applicant, his agent or any
person from or through whom the applicant has derived his right or title: Provided that secret knowledge or secret user otherwise than on a commercial scale shall be disregarded for the purposes of this paragraph; or
(b) described or illustrated in a publication, whether in or outside Zimbabwe; or
(c) registered in Zimbabwe; or
(d) the subject of an application for the registration of a design in Zimbabwe or of an
application in a Convention country for the registration of a design which has
subsequently been registered in Zimbabwe in accordance with the provisions of section
thirteen
OWNER OF AN INDUSTRIAL DESIGN
The author of the design is normally viewed as the owner (proprietor) however this is subject to certain exceptions such as where the author designs it for someone else in exchange for a valuable consideration ( usually money) then the other person (that pays the sum of money) is referred to as the owner(proprietor) of the design.
The Act further goes on to highlight that where a design or the right to apply the design to any article becomes vested in someone else other than the owner and the other party shall be regarded as the proprietor of the design for a specific design or the proprietor of the design as the case may be.
WHERE CAN AN INDUSTRIAL DESIGN BE REGISTERED?
At ZIPO (Zimbabwe Intellectual Property Office) ARIPO (African Regional Intellectual Property Office).
WHO CAN APPLY FOR THE REGISTRATION OF A DESIGN
- The owner (proprietor) of the design.
- An assignee (a person to whom a right is transferred by the proprietor) who can do such individually or jointly.
An assignee in terms of the Act is defined as
“assignee”, in relation to a design, means— (a) a person who has derived his title to the design for Zimbabwe directly or indirectly from the proprietor thereof or from the proprietor’s assignee; or (b) the legal representative of a person referred to in paragraph (a);
WHERE AN APPLICATION IS SUCCESSFUL
The proprietor is issued with a certificate of registration in relation to the design
RIGHTS THAT A PROPRIETOR ENJOYS
The proprietor enjoys the exclusive right to make, import or export for sale or for the purposes of any trade or business or to sell, hire or offer for sale or hire any article in respect of which the design is registered.
DURATION OF RIGHTS (VESTED IN PROPRIETOR)
One may note that the proprietor may enjoy rights that stem from the registration of an industrial design for a period of 10 (ten) years, the registration may be renewed after the lapse of the aforementioned period for a further period of 5 (five) years. All in all one may enjoy rights stemming from the registration of the design for a period of no more than 15 years.
REMEDIES AVAILABLE to PROPRIETOR UPON INFGRINGEMENT
- Damages
- Attachment
- Rendering of account
- Delivery of infringing copies or articles used or intended to be used for making infringing copies or otherwise amongst others.
If you are looking to register your design, please contact our team of Intellectual Property Attorneys that are ready to assist.
This is for general information purposes only – Seek the advice of a Lawyer
