What is a Registered Design
A design is defined as any feature of shape, configuration, pattern or ornament that is applied to any object by an industrial process and are judged solely by the eye. A design does not include any method of construction or feature which is dictated solely by the function which the object is to perform.
For a design to be registered, it must be new or original and must not be the same as a design which appears on the design register or has been published previously in Malawi. A design which differs with a previously registered design only in immaterial details or in variants commonly used in trade shall not be registrable.
Legal Framework for Registered Designs
Registered Designs are governed by the Registered Design Act [Cap 49:05].
Malawi is also a signatory to various international instruments including:
• The Paris Convention for the Protection of Industrial Property
• The Protocol on Patents and Designs within the Framework of the Industrial Property Organization for English-speaking Africa, 1984
• The Banjul Protocol
• The Madrid Protocol
Who may apply for Registered Design
The following can apply for registration of a design:
• The proprietor
• The author
• The assignee or legal representative of the proprietor
What Designs can be Registered
For a designed to be capable of registration, it must fulfil the following conditions:
• Be new or original
• Must be distinguishable by sight
• Must be distinguishable from known designs
• It must not merely be a feature that is commonly used in trade
• It must not be a feature that is solely dictated by the function that the product must perform
• Must not contain anything contrary to public order or contain any obscenity
What Designs Cannot be Registered
The following shall be excluded from registration under the Registered Designs Act:
• works of sculpture other than casts or models used or intended to be used as models or patterns to be multiplied by any industrial process
• wall plaques and medals
• printed matter primarily of a literary or artistic character, including book jackets, calendars, certificates, coupons, dressmaking patterns, greeting cards, leaflets, maps, plans, postcards, stamps trade advertisements, trade forms, and cards, transfers and the like.
What is the Procedure for registration of a design in Malawi
Registration of a Design in Malawi can be obtained by filing an application with the office of the Registrar General as follows:
• The appropriate from in accordance with the Registered Designs Act
• An Endorsement as to novelty
• Representations or specimens to be furnished with the application
• Power of attorney where applicable
The Registrar may then make the necessary searches as to novelty and registrability of the design.
What Rights are Conferred on Registration
The registration of a design under the Registered Designs Act shall give the proprietor or their successors the exclusive copyright in the design.
The proprietor shall have exclusive right to sell or use the said design in any trade or business.
The proprietor also has the right to assign or license the said design to third parties; such assignment may be registered with the office of the Registrar.
What is the Duration of Protection
Design registration is valid for a period of five years from the date of filing of the application and is renewable for two further terms of five years each.
How are Rights Enforced
Any action for infringement of a registered design shall be brought before the High Court where the applicant is at liberty to seek interlocutory remedies.
Conclusion
The law in Malawi allows for the registration of novel designs and vesting of rights in copyright, in their prospective proprietors. Said registration is valid for a renewable period of five years with infringers liable to suit in the High Court.
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