Registered Designs protect the appearance of a product. A “design” is the visual features such as shape, configuration, pattern or ornamentation which gives a product its appearance.
Did you know that Registered Designs are called different names in overseas countries? For example, in the USA a Registered Design is referred to as a ‘Design Patent’ and in Europe a registered design is referred to as a ‘Community Design’. Some countries even refer to ‘Product Designs’. Even with the different names, the basic concept behind each of these rights is similar (with some exceptions) with design rights being available for a new product with a unique appearance.
Requirements for Design Registration
Registered Designs are required to be “new” and “distinctive”. To be “new” a design must not be identical to a design which was previously disclosed by publication such as on the internet or used in Australia. To be “distinctive” a design is required to be not substantially similar in overall impression to a design previously disclosed by publication such as on the internet, or used in Australia. There is no grace period for Australian designs, so it is important not to disclosure your design before filing an application, as your prior disclosure may become part of the prior art, and result in your design application not being considered new and distinctive.
Term of Design Protection
Australian Registered Designs have a maximum term of 10 years.
Registered Design Q&A
Below are a few common questions we have had from individuals and businesses. We have provided answers to these questions for general information purposes only and these answers are not intended to be legal advice. If you’re after more information about designs we recommend visiting the IP Australia Website www.ipaustralia.gov.au. Of course, feel free to give us a call for a free initial discussion.
Can I just file a picture or photograph for my design?
In some cases, yes. However, like a lot of things in life, a design application may seem simple but there are a number of traps for the unsuspecting. Typically, the scope of protection offered by a design is limited to the visual representation filed with the design application. So if you file a photograph you may be limited to all the visual features shown which can be a problem in some instances. Accordingly, in some cases, it is best to show a canonical version of your design in the application to attempt to seek broader rights. However, choice of the representation is very much case-by-case and we would be happy to further discuss your design with you.
What is the difference between a Design and a Patent?
Registered Designs protect the way something looks whereas patents protect the way something works. Of course, in some cases, there is some overlap and we can help you work out whether to file for a patent, a design or both. For example, if you designed a new pair of scissors with a unique shaped handle, then you may be able to seek Design protection. However, as the function of scissors and scissor handles are known, and therefore not new, you would have difficultly obtaining patent protection unless there was some new functional advantage to your scissors.
Can I file a Design Application Overseas?
Yes. Typically, a Design application is filed in Australia and, within 6 months, a “convention” design application is filed in other countries of interest such as the USA, Europe and China. The specific design law and requirements for each county do vary and these variations should be taken into account when preparing your initial Australian application. We would be happy to discuss these variations with you.
What products may be protected by a Design?
Many different products may be protected, for example, pump and wind turbine blades, fashion products such as dresses and shoes, furniture and decorative items, surfing equipment and computers, tablets and phones to name a few. Unlike some jurisdictions there is no prohibition on Australian designs incorporating visual features which are primarily functional rather than ornamental in nature.