In the fashion category, it is so far mostly jewellery designers who protect their creations
To avoid legal battles and to strike a balance between giving creators enough rights so that they have an incentive to continue to create, the Companies and Intellectual Property Authority (CIPA) is urging fashion designers (and other designers) to register their designs.
The organisation’s Awareness and Communications Manager, Marietta Magashula, says there is a need to create awareness around their service to fashion designers because so far only jewellery designers are coming forward to protect their works.
“Protection of rights accords owners of works the right to press charges against any form of infringement that may occur against their works,” Magashula said in interview. “In addition to that, with a protected industrial design, one has a better chance to negotiate deals with potential business partners, in particular international retail chains, as one is able to demonstrate proof of ownership of the design with a registration certificate.”
Section 45 of the Industrial Property Act of 2010 defines industrial design as the protection granted to defend the appearance of any product, including fashion designs. Industrial design protection can be applied to a wide variety of goods, including household goods, electronic devices and cars. Furthermore, the Copyright and Related Rights also protects literary and artistic works automatically upon creation, which includes fashion designs because they are classified as artistic works.
According to Magashula, for a fashion design to be protected as an industrial design, the owner or creator can fill out an application form for registration and submit it to CIPA. Registration confers exclusive rights to the owner to gain economically from their creation, as well as the right to take legal action against anyone who may use their design without authorisation.
“So far we have not yet received any complaints or legal cases related to copyright,” Magashula said. “But once designers have registered and notice infringing designs on the market, they can report the matter to either CIPA’s Compliance and Enforcement Division, the Botswana Police Service, or directly sue the infringing party. The courts may grant relief by way of damages and/or destruction of the infringing products.”
Fashion designers are encouraged to record their works with CIPA. They can do so by completing the required forms and submitting photos of the designs they wish to record. Under the Copyright and Neighbouring Rights Act, designers can submit a copy of the work and a certified copy of Omang or passport certified by the relevant embassy for non-citizens.
An application to register a design under the Industrial Property Act should be accompanied by a request in writing, a completed application form, and a drawing/photograph or other graphic representation of the design. The application fee for small entities is P40, with an additional P20 for each design on the application. After the design has been examined, an additional P75 is paid for publication and registration.