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Aleck Ncube, Intellectual Property
THIS write up is meant to assist small and medium-sized enterprises (SMEs) to navigate and optimally utilise the intellectual property right system. It focuses on aesthetic designs as a key factor in determining the success of products in the market. In intellectual property law, an aesthetic design relates to the outward appearance of a product.

It is what makes aproduct attractive or appealing to customers and visual appeal is one of the key considerations that influence the decision of consumers to prefer one product over another.

Aesthetic designs help companies to differentiate their products from those of competitors and enhance the brand image of their products. This is why ensuring the proper protection of aesthetic designs is so important.

What is a registered design?
For businesses, designing a product generally implies developing the product’s functional and aesthetic features taking into consideration issues such as the product’s marketability, the costs of manufacturing or the ease of transport, storage, repair and disposal. A registered design is a form of IP, which allows its proprietor to protect the IP that vests in a product’s form and/or function.

Design law provides a mechanism through, which to obtain exclusive rights to a product’s functional and/or aesthetic features. An aesthetic design will focus only on the aesthetic nature of the finished product regardless of whether there is a technical or functional aspect. As a general rule, an aesthetic design consists of: three dimensional features, such as the shape of a product, two dimensional features, such as ornamentation, patterns, lines or colour of a product; or a combination of one or more such features.

Why protect designs?
A design adds value to a product. It makes a product attractive and appealing to customers, and may even be its unique selling point. So protecting valuable designs should be a crucial part of the business strategy of any designer or manufacturer. By protecting a design through its registration at the national or regional intellectual property office, the owner obtains the exclusive right to prevent its unauthorised copying or imitation by others. This makes business sense as it improves the competitiveness of a business and often brings in additional revenue in one or more of the following ways:

– By registering a design you are able to prevent it from being copied and imitated by competitors and thereby strengthen your competitive position.

– Registering a valuable design contributes to obtaining a fair return on investment made in creating and marketing the relevant product thereby improves your profits.

– Registered designs are business assets that can increase the commercial value of a company and its products. The more successful a design, the higher is its value to the company.

– A protected design may also be licensed (or sold) to others for a fee. By licensing it, you may be able to enter markets that you are otherwise unable to serve.

– Registration of designs encourages fair competition and honest trade practices, which in turn promotes the production of a diverse range of aesthetically attractive and/or functional products.

Exclusive Rights
Let us assume that your company has designed an umbrella with an innovative design, registered it at the Zimbabwe Patent Office, and has therefore obtained exclusive rights over umbrellas bearing that design. What this means is that if you discovered that a competitor is making, selling or importing umbrellas bearing the same or substantially the same design you will be able to prevent him from using your design in Zimbabwe and, possibly, obtain compensation for damages, which your business has suffered from the unauthorised use of that design. While you cannot stop competitors from making competitive products, you may prevent them from making products that look just like yours and having a free ride on your creativity.

How do you obtain protection for designs in Zimbabwe?
In Zimbabwe, like in most countries, a design must be registered in order to be protected. To register an aesthetic design you must file an application at the Zimbabwe Intellectual Property Office (ZIPO) in Harare.

Creative Designs in Business
Enterprises often devote a significant amount of time and resources to enhancing the design appeal of their products. New and original designs are often created to:

1. Customise products to appeal to specific market segments: small modifications to the design of some products (e.g. a watch) may make them suitable for different age groups, cultures or social groups. While the main function of a watch remains the same, children and adults generally have very different tastes in design.

2. Create a new niche market: in a competitive market place, many companies seek to create a niche market by introducing creative designs for their new products to differentiate them from those of their competitors. This could be the case for ordinary items such as locks, shoes, cups and saucers to potentially expensive items such as jewelry, computers or cars.

3. Strengthen brands: creative designs are often also combined with distinctive trade marks to enhance the distinctiveness of a company’s brand(s). Many companies have successfully created or redefined their brand image through a strong focus on product design.

What rights are provided by registered designs?
When a design is protected by registration, the owner or proprietor of the design is granted the right, for the duration of the registration of the right, to exclude other persons from making, importing, using or disposing of any article included in the class in which the design is registered and embodying their registered design or a design not substantially different from the registered design, so that he shall have and enjoy the whole profit and advantage accruing by reason of the registration.

What can be registered as an aesthetic design?

To register an aesthetic design in Zimbabwe, it must meet the following basic requirements:
– The design must be “new”. A design will be considered new if it does not form part of the state of the art immediately before the application for registration or the release date (whichever is earlier); and

– The design must be “original”. A design will be considered original if it has been independently created by the designer and is not a copy or animitation of existing designs.

Traditionally, protectable designs relate to manufactured products such as the shape of a shoe, the design of an earring or the ornamentation on a teapot. In the digital world, however, protection is gradually extending in some countries to a number of other products and types of design. These include electronic desktop icons generated by computer codes, typefaces, the graphic display on computer monitors and mobile telephones, etc.

Aleck Ncube is an intellectual property scholar based in Bulawayo. He can be contacted on mobile: +263712374408 Skype: Matintas1 Twitter: @aleckncube Alternative E-mail: [email protected]