Australia provides robust rights for a wide range of intellectual property. This is a major advantage for any business that is looking to sell, manufacture or distribute their products Down Under.
Businesses and individuals can all benefit from trade marks and patents, but it’s also possible to protect the outward appearance that makes your products unique. With an Australian design right, you can prevent others from copying your work, which is crucial in design-centric industries such as fashion, furniture and the automotive world.
In this article we’ll explore how to protect your design from being copied and the process of applying for design rights.
How to Protect Your Design From Being Copied
The design of your products can have a major impact on your business. Distinct design elements are a major component of branding and often contribute to the value of your products. This means it can significantly impact your bottom line if your designs are copied without permission.
In Australia, unique design elements are a form of intellectual property that can be protected with a Design Right. Registering your design grants you the exclusive right to use, sell or licence a design for commercial purposes. If your designs serve as a product feature, or if they help customers distinguish your brand from competitors, design registration is the best way to protect your IP.
What Does a Design Right Protect?
A design right protects the appearance of new and distinctive products. Design rights protect visual features such as shape, colour, pattern, configuration and ornamentation.
Obtaining a design right grants you a monopoly over that design within Australia, allowing you to manufacture, market, sell, licence or distribute the design as you see fit.
Your product is eligible for a design right if it:
Has a tangible form
Is either handmade or manufactured
Is being produced on a commercial scale
Registering a design grants protection for the overall design. A design right does not protect:
The materials used
Partial design features
Designs with no physical form (such as computer graphics)
Your brand name and logo
The function of the product
Design rights often coincide with other forms of intellectual property, such as trade marks and patents. If a product has a unique design and provides inventive functionality, you could apply for both a design right and patent.
How to Apply for a Design Right
Applying for a design right is a straightforward process. We recommend working with an attorney when registering a design. An attorney will dramatically improve the chances of your application being approved and can simplify the process of applying for multiple designs at once. The process is as follows:
Search existing designs to determine whether your design is new and unique. Searching the design database is complex and should be handled by your attorney.
Lodge your application and pay the application fee. Your documentation needs to include ownership details, the name of the product and a representation of the design (such as a photo or line drawing)
Your application is published on the Australian design database.
Your application undergoes a formalities assessment to make sure it meets legislative requirements.
If issues are found during the formalities assessment, you have two months to overcome them. This may involve modifying your application or challenging the decision.
Once any issues have been overcome, your design is registered and published. Initial registration lasts for 5 years and can be renewed for up to 5 additional years.
It’s important to note that a design right does not automatically grant the right to enforce your design. You must certify your design if you want the option of taking legal action against anyone who uses your design without permission.
Design certification can be requested when you file your application or at any time during the registration period. Certification attracts an additional fee. During the certification process, IP Australia will determine whether your design is identical or similar to any other design in the world. If your design is unique and no other issues are raised, your design will be certified.
Design Rights vs Copyright
Copyright protects the tangible expression of original ideas. Copyright is automatically granted in Australia, and it can be used to protect product designs in some cases.
The major difference between copyright and design rights is an issue of scale. Copyright protection does not apply to products that have been commercially exploited. Designs that are applied to more than 50 items are not protected by copyright. Since you cannot register a design after it has been made public, it’s important to obtain design rights before commencing manufacturing.
International Design Rights
Australian design rights only provide protection within Australia. If you plan to manufacture or sell your product in overseas markets, you should consider applying for design rights in those jurisdictions.
Registering a design in Australia gives you the ability to apply for the same design right overseas within 6 months. As Australia is not a member of the Hague Convention, overseas design registrations typically need to be filed and managed individually. Each jurisdiction has its own requirements for design registration, so this process should be handled with the assistance of an IP attorney.
Secure Your Designs with the Intellectual Property Attorneys at KINGS!
Design rights are an important tool for companies that sell tangible products. The physical form of your products can have a serious impact on profitability, so it makes sense to protect your ideas with the attorneys at KINGS!
KINGS is an independent firm offering intellectual property services throughout Brisbane. Our experienced attorneys can help you obtain, manage and enforce intellectual property rights, including designs, trade marks and patents. Support from our attorneys allows you to maximise each design and stay ahead of your competitors.
If you are preparing to manufacture a new product, contact KINGS and book a confidential consultation today!
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