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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.
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.
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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