INTELLECTUAL PROPERTY RIGHTS AND MOULDS
The design and manufacture of a mould often requires great effort, skill and expenditure by a proprietor. As such, it is of great importance to a proprietor that their mould is protected so as to prevent competitors from copying it and gaining an unfair advantage. Fortunately, intellectual property laws in South Africa provide ample protection possibilities to a proprietor of a mould.
This article gives an overview of the types of intellectual property which could protect a mould.
A mould would qualify for patent protection if it is new, involves an inventive step and is useful in trade, industry or agriculture. The novel and inventive merit of the mould would be assessed with reference to the so-called “prior art”. The “prior art” includes all matter which has been made available to the public anywhere in the world, through written or oral description, use or in any other way. However, it is important to note that if a patent has been granted for a mould, the patent would not extend to an article which has been manufactured with the mould.
Design registration protection
A mould may also qualify for protection as a functional design registration provided the mould is new and not commonplace in the art in question. A functional design protects the pattern, shape or configuration of an article, having features which are necessitated by the function which the article is to perform. As is the case with the law of patents, if a functional design registration has been registered for a mould, the functional design registration would not extend to an article which has been manufactured with the mould.
In terms of the Copyright Act 98 of 1978 (“the Copyright Act”), a mould qualifies as an artistic work. Copyright will subsist in the mould if the mould was made by a qualified person and if the mould is original. Here, the term “original” means that the author of the work (i.e. the person who makes or creates the mould) must expend enough skill and effort to give the mould a quality or character of its own. A “qualified person” includes a natural person who is a South African citizen or who is domiciled or resident in South Africa.
For copyright to remain in the mould, it is of the utmost importance that three-dimensional reproductions thereof should not be made available to the public.
All of the above intellectual property rights may be used to protect a mould and various enforcement strategies may be used.