Protecting a product shape?

We have all heard recently about the court battles between Apple and Samsung and the alleged copying of each others products that’s going on.
Products shapes can be protected in terms of law and one of the disputes between Apple and Samsung has been regarding the design of the products.

Shapes of products can be protected by filing either a trademark or design application.

There are 2 types of Designs in terms of our law, aesthetic and functional designs.

An aesthetic design includes any design which appeals to the eye, irrespective of the aesthetic quality. A functional design will have certain functional features which are needed for the product/article to perform.

An example of an aesthetic design is the shape of a vehicle and 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.

A trademark can at least be renewed every 10 years as compared to registered designs.

A USA 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. 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 cans require the infringer to pay the patent owner “the extent of his total profit” of the “article of manufacture” found to be infringing.

The profits of the Apple case could amount to hundreds of millions of dollars and Samsung would be liable to pay this amount.

Should you create a unique product, we recommend that you protect the product before someone runs away and copies it.