Australia’s intellectual property laws allow you to protect the distinctive parts of your business. This includes things like branding, which can have a major impact on the way customers perceive your products.
However, distinctive elements include more than branding and logos. Products themselves may contain unique value that needs to be protected from replication.
This is done through design registration. By registering the design of your products, you gain the right to exclude others from using the design and prevent competitors from copying your work.
In this article, we’ll discuss design rights, what can and can’t be protected, as well as how to lodge your application.
A design right is intellectual property that protects the visual appearance of new and distinctive products. Design rights grant the exclusive right to use, license, sell and commercially exploit the design.
A registered design protects the shape and appearance of a product or parts thereof. This may include its shape, configuration, patterning, ornamentation and visual features.
It’s important to note that design registration only protects the appearance of a product. It does not protect:
Other aspects of a product (such as the functionality and materials) can be protected by patents. It’s strongly recommended that you consider both a patent and design registration in such cases. This is the best way to prevent competitors from manufacturing similar products..
The design of a product has substantial value. Design represents an investment in product development, and it can help to differentiate your products from those of competitors. Registering designs offers several benefits:
A design right provides the exclusive right to use, license or sell your design within Australia. You can exclude others from using your design (or a substantially similar design), and take legal action if your right is infringed.
Australian design rights only provide protection within Australia, but they allow you to apply for the same right in certain overseas jurisdictions.
Research has shown that customers associate “high design” aesthetics with higher price tags. If you create a design that adds value to your product, you’ll need to prevent competitors from copying your design without permission.
Product design can be a distinctive feature of your brand. Where this is the case, having your designs copied can dilute your brand and decrease the value of its products.
Given the benefits we listed above, it’s no surprise that design rights have substantial value. This is important if you intend to sell your design, brand or business as a going concern.
Most new products can be registered as designs. This includes items intended for domestic, commercial and industrial use. To be eligible for design registration, a design must be distinctive and visually new.
Minor changes do not necessarily make a design distinctive. A design must not be “the same or substantially similar” to any existing design in order to qualify for registration.
Note that IP Australia provides a 12-month grace period for designs that are publicly-disclosed before you apply to protect it. If the design was published by accident, or if you were unaware that you needed to apply for protection, you may still be able to acquire a design right.
The grace period applies to new design registrations that are filed on or after 10 March 2022.
Obtaining a design right is a two-part process in Australia. Unlike other IP rights, design registration does not automatically grant the ability to enforce your rights. If you wish to enforce your rights and take legal action against other people who use your design, you’ll need to register and certify your design:
Registered designs last up to 10 years in Australia.
The initial design registration lasts for 5 years. It can be renewed for a further 5 years prior to expiration date. Registration can only be renewed once, so the maximum duration of a design right is 10 years.
Australian design rights only grant you the exclusive right to use your design within Australia. If you want to protect your design overseas, you must apply for protection in those countries individually or through the Hague System.
If you are using the Hague System, your Australian design application can be used as the basis to apply for the same design overseas within 6 months of your application.
The process of applying for design rights varies between countries. It’s important to work with an IP attorney to ensure your rights are secured and enforced in overseas jurisdictions.
The design of products can have a significant impact on your success as a business. Protecting unique designs is the best way to prevent competitors from replicating your success, allowing you to maintain an edge in an increasingly global market.
Registering a design is a straightforward process, and it becomes simple with the help of the attorneys at Kings!
Kings is an independent intellectual property firm based in Brisbane. We assist our clients with protecting your most valuable assets. If you need to secure products, our team can help you obtain design rights, patents and trade marks.
Contact us today to find out more, or call us directly to book a confidential consultation.
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