The Hague Agreement, administered by the World Intellectual Property Organization (WIPO) is a multinational IP registration system regulating industrial design rights. It provides businesses and individuals with a simplified and cost-effective way to secure industrial design protection across multiple countries through a single application. While South Africa is not yet a member, understanding the Hague System is crucial for companies looking to expand into international markets. Let's discuss what aspects of design law this Convention regulates and how businesses can leverage this treaty to protect the look and feel of their products.
What is an industrial design and how is it different from a patent or registered design?
An industrial design refers to the visual or aesthetic features of a product. This could include the shape, pattern, colour, or design applied to an item that makes it visually appealing or distinctive. Protecting an industrial design means others cannot copy or imitate the appearance of the product without permission or licensing, helping the creator or owner maintain an edge in the marketplace. This protection is especially useful in industries such as fashion, furniture, electronics, and packaging, where the look and feel of a product are essential for its success.
A patent, on the other hand, protects a novel process, or the functionality and technical aspects of an invention. It gives the patent holder the exclusive right to prevent others from making, using, or selling the invention for a set period (usually 20 years), as long as the invention is new, inventive, and useful.
The key difference is that a patent focuses on how a product works, while an industrial design focuses on how a product looks.
In South Africa and other jurisdictions, a registered design can fall into two categories: aesthetic designs and functional designs.
An aesthetic design protects the visual appearance of a product, similar to an industrial design, covering aspects like shape, pattern, or ornamentation.
A functional design, however, protects features that are needed for the product to function, while still having elements that make it visually distinctive.
While the term "industrial design" usually refers to a product's appearance, "registered design" in some countries, including South Africa, offers protection for both the aesthetic and functional features of a product. In South Africa, protection can last up to 15 years for aesthetic designs and 10 years for functional designs, subject to renewal.
Industrial Design: Protects the appearance of a product.
Patent: Protects the functionality and innovation of a product.
Registered Design: In South Africa, a registered design can cover either the visual or functional aspects of a product.
Key Features of the Hague Agreement on Industrial Designs
The Hague System offers several advantages for protecting industrial designs internationally:
Single Application, Multiple Countries: Applicants can submit one application and pay a single set of fees to protect their design in multiple member countries.
Simplified Management: The Hague Convention allows industrial design holders to consolidate renewals and management tasks into a single system, making it easier to maintain design rights across multiple countries.
Flexible Protection: Applicants can designate as many countries as needed, depending on their business strategy.
This system streamlines the process for businesses seeking to protect their designs globally without navigating each country’s national system individually.
Importance of Industrial Design Protection
Industrial design protection safeguards the visual elements of a product, such as shape, patterns, or ornamentation. This protection is especially important in industries like fashion, furniture, electronics, and packaging. The Hague Agreement allows businesses to secure this protection in multiple jurisdictions, helping them maintain a competitive advantage and prevent unauthorised copying.
South Africa’s Position on the Hague Agreement
South Africa is not currently a member of the Hague Agreement. However, South African businesses can still benefit from it by filing applications in member countries, such as the European Union or Japan, through their international business interests.
For South African companies with international reach, the Hague Agreement presents an easier route to securing industrial design protection abroad, even if it’s not available domestically.
The Relationship Between the Hague Agreement, ARIPO, OAPI, and the Paris Convention
While the Hague Agreement provides streamlined design protection internationally, it is closely tied to the Paris Convention for the Protection of Industrial Property, which South Africa is a member of. Under the Paris Convention, applicants can claim a six-month priority period for design applications in other countries. This allows South African applicants to file domestically and still secure international design protection within six months under the Hague Agreement, retaining their original filing date.
In the African context, ARIPO (African Regional Intellectual Property Organisation) and OAPI (Organisation Africaine de la Propriété Intellectuelle) have acceded to the Paris Convention and OAPI has acceded to the Hague Convention. ARIPO, however, has not yet signed onto the Hague Agreement.
ARIPO covers member English-speaking African countries and provides a mechanism for the registration ofindustrial designs under the Harare Protocol. The Paris Convention's priority system applies here, but design protection through the Hague Agreement cannot currently be accessed through ARIPO.
OAPI, which covers member French-speaking African countries, offers centralised design protection through a single registration. OAPI follows the Paris Convention’s priority system and provides access to the Hague System for international design registrations.
The Hague Agreement and Other International IP Systems
The Hague System complements other international IP systems like the Madrid System for Trademarks and the Patent Cooperation Treaty (PCT) for patents. These systems, including OAPI, allow businesses to protect different aspects of their intellectual property portfolios internationally using centralised registration systems. Combining these tools ensures that both the functional and aesthetic elements of products and your brand are fully protected across borders.
The Hague Agreement offers an efficient solution for international industrial design protection, even though South Africa has yet to join. For South African companies looking to protect their designs abroad, particularly in countries that are part of the Hague System, the agreement simplifies the process and allows them to expand internationally with less complexity.
Would you like to speak further with our award-winning team regarding industrial design rights? Reach out to us via email to start the conversation info@debeerattorneys.com.
This information was last updated on 14 September 2024. This information is for general educational and entertainment purposes and is subject to change at any time.
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