Design

What is a Design?

A design is the overall appearance of a product. The visual characteristics that form the design include the shape, pattern and configuration which, when applied to the product, gives it a unique appearance. The following are examples of the designs over the years, of a telephone.

What are Design Rights?

A design right is a property right which exists in an original design. A design is not original if it is common in the design field in question at the time of its creation.

Design rights exist in a design only if the design qualifies for design right protection in accordance with section 35 of the Intellectual Property Act 2011. The Design right does not exist unless and until the design has been recorded in a design document or an article has been made to the design.

A design must be new in order for it to be registrable. A design is new if it has not been publicly used in Samoa nor has it been published in a document anywhere in the world, before the filing date.

Design consists of:

Three dimensional features, such as shape of an article.

Two dimensional features, such as patterns, line or colour.

Why Register a Design?

A registered design can be a valuable commercial asset as the registration of the design gives the owner protection for the visual appearance of the product but not the feel of the product, what it is made from or how it works. Registered designs are used to protect the visual appearance of manufactured products, handicraft items as well as graphic symbols and logos.

Non-registrable Designs

A design cannot be registered if:

it is contrary to public order or morality or
based on matai titles, names of persons or Samoan villages, or religious words or symbols or
identical with an armorial bearing, flag and other emblem, a name or abbreviation of the name and hallmarks

Ownership of Design Rights

The owner of a design can be:

The creator of any design
When two (2) or more persons have jointly made a design, the right belongs to them jointly
Design created in the course of employment, the employer owns the design
If a design is made in execution of a commission, the design belongs to the person who commissioned the design.

Rights of Design Owner

A design right is a property right which can be bought, sold, or transferred like any other property.

The design owner has exclusive right to:

Reproduce the design
Make, sell or import articles incorporated in the design for commercial purposes.

However design right does not extend to:

Acts in respect of articles which have been put on the market anywhere in the world by the owner or with the owner’s consent; and
Use of articles on aircraft, land vehicles or vessels of other countries, which temporarily or accidentally enter Samoa.

Duration of Protection

Registered Designs are registered for a period of five (5) years from the filing date of application and then may be renewed for two (2) further consecutive periods of five (5) years by the payment of the prescribed fees.

Therefore the full term of protection for a design registration is 15 years. Anyone who disagrees with a design registration can apply for the registration to be invalidated, in accordance with the relevant provisions of the Intellectual Property Act 2011.

Designs Protected by Copyright

Designs can be protected under Copyright, provided it meets the requirements of the Copyright Act 1998. The design should be a new and original work with some artistic quality to it. Copyright is automatic, free and does not require a registration. However, registration of the design provides a higher degree of protection than an unregistered design.

Application for Registration

An application for the registration of a registered design must be filed to the Registrar and must be accompanied by the prescribed fees. The application submitted to the Registrar must contain all of the following:

The applicant’s name, address and nationality including the details of any agents used by the applicant for this purpose;
Each creator’s name;
A request for registration of the design;
Drawings, photographs or other adequate graphic representations of the article embodying the design;
A statement of the kind of products for which the design is to be used with reference to the classifications in Schedule 1;
Written authorization appointing the representative of the applicant i.e. the applicant’s age