Intellectual Property Law


A ‘design’ is granted protection in the context of intellectual property related to the artistic element in or overall appearance of the manufactured product.

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Design Lawyers Melbourne and Essendon

A ‘design’ is granted protection in the context of intellectual property related to the artistic element in or overall appearance of the manufactured product. The term ‘design’ refers to the features such as pattern, shape, ornamentation applicable to an article of manufacture or a configuration.

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What is the registration of a design?

A design is registered under the Designs Act 2003 (Cth) in Australia to protect a newly created visual appearance of an article or product from copying by competitors. Design registration are commercial assets. It can prevent competitors from making, selling, using, and/or importing articles or products which look substantially similar in overall impression to the registered designs.

The system of registration protects the designs for up to 10 years for visual appearance of the product, initially for five years and could further be renewed for five years. The application process for design registration is simple and inexpensive. Design registration system is the Australian version of the design patent systems available in other countries. The registration of design does not protect the feel of the product i.e. how it works or what it is made from. A design could be registered only if the design is new and distinctive.

A distinctive design is not substantially similar in overall appearance to other designs already in public domain. If a design is substantially similar in overall impression to the registered design, it amounts to the infringement of the registered design under the Designs Act 2003.

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Why should a design need a registration?

A design registration or patent is used to preserve the profit margin by limiting competition and/or to generate new income streams by licensing. The licences can be bought and sold like any other commercial assets. If a manufactured article or product is on the market but is not covered by a patent or design registration, the competitors are free to copy it resulting in reduced profits.
Generally, registration of a design is recommended if:
  1. a product is of commercial importance and an additional layer of protection alongside patent protection is warranted.
  2. there is a significant risk of direct copying; and/or
  3. the appearance of the product is important (e.g. many consumer goods); and/or
  4. the appearance of the product is dictated by an important function.

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How can I register a design?

To register a design with IP Australia, a ‘representations’ of design and brief text is filed with IP Australia. To cover the elaborate scope of design, format of the representations requires to give proper consideration. The drawings could be made in black and white lines and colour photographs might be appropriate if colour combination is commercially important.

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How long does it take to register the design?

In the normal course of events, the design is registered and published within a few weeks of filing the application. The registration must pass examination and be certified before it can be enforced, else examination is optional.

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How is a design protected by registration?

A design is protected in overall appearance of the article or product by registration. However, the registration of a design does not protect how the product functions. The functionality of the product could be protected by patent provided the functionality is sufficiently novel.

It is common to apply for Dual design and patent protections. The dual design and trademark protection are also a popular choice. Trademarks can also protect the shape of a product. The criteria for obtaining shape mark protection differs from design protection. You can see the trademarks registration page for more information. A patent application or design application must be filed prior to the design being publicly disclosed.

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What types of design can I protect?

To protect a design, it should be new and distinctive when compared to designs already out in public domain. To determine whether a design is new and distinctive, the design must be compared with the ‘prior art base’ that includes designs published anywhere in the World. A design is ‘new and distinctive’ if an identical or substantially similar design in ‘overall impression’ does not exist in the public domain.

Like patents, the design cannot be not publicly disclosed before you apply for design protection. Unlike with patents, there is no grace period and you will not be able to obtain design protection if it is disclosed publicly prior to making a design application. The assessment is made by a review of prior designs worldwide and use of similar designs in Australia.

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Can I protect my design in other countries?

The protection of similar designs is available in other countries. An application for design protection can be filed up to six months after the application filed in Australia. It is critical to keep the design secret until an initial application for design is filed.

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How will I renew my design?

The design is initially registered for a period of five years after which you may choose to renew the design for a period of further five years. If you do not renew and extend the period of design registration, your design will cease. You may renew your registration any time during six-month grace period that starts immediately after first five years of registration, but a monthly fee will apply from the date renewal is due.