Registered design rights: Valuable but overlooked form of IP protection
The Springboks have done it again - successfully defending their Rugby Championship title against the All Blacks, the Wallabies, and Los Pumas. The Springboks continue to make the nation proud, as seen in the growing sea of supporters’ jerseys worn by South Africans across the country.
Image: One of the many iterations of official Springbok merchandise from over the years © Shan Radcliffe
There is significant commercial opportunity in sports merchandise and there have been many versions of a Springboks supporters’ jersey entering the market in the last decade or so. There are many factors which can contribute to the commercial success of a product, but the most important factors in obtaining and retaining a competitive edge include securing intellectual property rights.
The role of registered designs in protecting apparel
When considering apparel, one may immediately think of trade mark and copyright protection – and often stop there. However, another valuable - but frequently overlooked - form of intellectual property is the registered design right (also known as an industrial design right).
Copyright provides protection against actual copying of certain works, such as the artistic work associated with the apparel. Trade marks provide a “badge of origin” and protect against the use by others, of identical or confusingly similar marks.
Registered design rights, on the other hand, provide protection against designs which are identical to or not substantially different from the registered design, as it is applied to an article. The registered design may comprise a certain pattern, shape, configuration and/or ornamentation and has features which appeal to and are judged by the eye, even if they lack aesthetic merit.
A key advantage of registered design protection is that one does not have to prove actual copying (as in the case of copyright infringement), nor is it necessary to show a likelihood of deception or confusion by a consumer (as in the case of trade mark infringement). The question instead is, objectively, whether the offending design is identical to, or not substantially different from, the registered design.
On the downside, aesthetic design rights in South Africa last only for 15 years, compared to the term of copyright protection, which is significantly longer, and the term of trade mark protection, which can be perpetually renewed. The more important point is that these three IP rights can coexist, and design protection should not be discounted as a means of protecting apparel.
How do design rights apply to Springboks supporters’ jerseys?
Two popular Springbok supporters’ apparel ranges – not tied to the official supporters’ apparel of SA Rugby – are those marketed by Old School Clothing and, more recently, the Amabokoboko range marketed by Mr Price Group. Logos of the two popular brands, which can be found on the supporters’ jerseys, are depicted below.
Supplied images
The two logo designs are strikingly similar at first glance. Both primarily comprise the colours green and gold, although that may be an easy similarity to spot for any Springboks-related apparel.
Looking more closely, both logos are rectangular in shape, portrait in orientation, and include the words, “South Africa”. Each features a springbok head positioned within a yellow ellipse, the ellipse bordered ornamentally by a laurel pattern, and a banner configured at the bottom containing a trade mark in bold.
The logos certainly have features that appeal to the eye, making them strong candidates for design registration.
IP Law
Why Nero's attempt to trademark its 'Champagne' brand fizzled out in EU court
Jeremy de Beer 30 Oct 2025
Were either of these logos registered for design protection in South Africa?
Unfortunately, no, at least not in the names of Old School or Mr Price. Interestingly, the Old School logo is the subject of a pending South African trade mark application.
The South Africa Designs Act provides that designs may be registered within a particular class of articles. This classification system includes a specific class (Class 32) for graphic symbols, logos, surface patterns, and ornamentation.
Importantly, design protection extends only to articles falling within the class in which the design is registered. Class 32 would therefore have been a suitable class, had design applications been filed, as it would have provided protection for a logo with a similar design applied to any article, not just to supporters’ jerseys.
Can applications for registered designs still be filed?
Unfortunately, the answer is also no. Under South African design law, an applicant has up to six months from the date of first public disclosure of a design to file an application. Both logos mentioned above have been marketed for well over six months.
IP Law
Lost vs Lady Gaga: Mayhem over registered word marks and unregistered logos
Rual Grobler 2 Sep 2025
What if applications for registered designs had been filed?
A hypothetical scenario in which one or both of the Old School and Amabokoboko logos were the subject of design registrations would have made for an interesting case study. Provided the logo design was new and original, it would have been possible to obtain a valid and enforceable design registration.
If both logo designs met these criteria, the order in which they were filed or released to the public would have been crucial, both for determining the validity and enforceability of the design registration and for assessing the risk of infringement.
If one logo had been filed or publicly disclosed before the other, based on the similarities noted above, the earlier logo would likely have been relevant as “prior art” for determining the novelty of the latter logo design. In this regard, the latter logo design would be novel in view of the prior logo only if the differences between them were more than practically immaterial.
This is a factual question to be judged by the eye, but not an easy one to answer. Undoubtedly, many readers will have differing views on the extent to which the individual features of each logo design impart a distinct character of novelty to the overall design.
IP Law
Will 'Cold' Palmer's shivering celebration become a worldwide trade mark?
Peter Mercuur 21 Aug 2025
Secondly in this hypothetical scenario is the question of infringement. If the earlier logo were the subject of a valid registered design, the latter logo, whether or not it was itself registered, could have been at risk of infringement of the earlier registration.
In determining infringement, it would have been necessary to compare the earlier design registration against prior designs to ascertain the scope of protection afforded. Potentially relevant prior designs would include one of the many Springbok logos produced and registered (as trade marks) by the South African Rugby Union (Saru) since about 1993 (the earliest Springbok trade mark in the name of Saru dates to 1977).
Supplied images
If these Saru logos were, for argument’s sake, the closest prior designs to either the Old School or Amabokoboko logos, then those latter logos would seemingly have been quite different to the prior art. Accordingly, a design registration for either logo might have provided a broad scope of protection, arguably broad enough to capture the other logo, which came later.
In such a scenario, the proprietor of the earlier design registration would not need to prove copying, nor demonstrate a likelihood of deception or confusion among consumers, to stop the infringing design. For example, if either logo had been registered as a trade mark but consumers were not confused or deceived by the logos because of the inclusion of the words “Old School” and “Amabokoboko”, then relief would not be granted for trade mark infringement.
However, if there was also a registered design, effective relief could still be obtained, regardless of any lack of consumer confusion, provided that the designs were found to be not substantially different, objectively, in view of the prior art.
Although design rights work well alongside trade mark and copyright protection, they each command their own distinct domain. Design protection, in particular, can fill gaps that neither copyright nor trade mark law cover, to prevent a wake of look-alike products that either imitate the overall appearance of the article or elements such as its logo.
About the author
Patrick O’Brien (patent attorney and Senior Associate), with oversight from Jonathan Whittaker (Partner), at Spoor & Fisher.