Australia’s intellectual property laws make it simple to protect the distinctive parts of your business. Elements of your branding can have a major impact on the way customers perceive your products. But those distinctive elements include more than just 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, which can prevent competitors from copying your work. In this article we’ll discuss design rights in more detail, including what can and can’t be protected, as well as how to lodge your application.
What Does a Registered Design Protect?
A registered design protects the visual shape and appearance of a product or parts thereof. The ‘design’ can include anything that makes up the overall appearance of a product, such as its shape, configuration, patterning, ornamentation and visual features.
Design rights are intended to protect the unique appearance of products, and to prevent competitors from manufacturing identical (or “substantially similar”) products. Since the design of a product can have a significant impact on customer buying decisions, design registrations are a critical part of protecting your intellectual property.
It’s important to note that design registration only protects the appearance of a product. It does not protect:
- How the product is designed
- The functionality of the product
- The materials used
- Designs that aren’t applied to tangible products (such as logos and concept art)
Other aspects of a product (such as the functionality and materials) can be protected by patents. It is 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..
Requirements for Design Registration
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.
A visually new design is any design that:
- Has not been publicly used
- Has not been disclosed in a previous design application
- Has not been published in a document anywhere in the world
A distinctive design is any design that:
- Is not identical or substantially similar to existing designs
- Has not been disclosed in a previous design application
- Has not been published anywhere in the world
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.
How Long Does Design Registration Last?
In Australia, registered designs last for an initial period of 5 years. Design registrations can be renewed prior to the expiration date for a further 5 years. Registration can only be renewed once, so the maximum duration of a design right is 10 years.
An Australian design right only grants you the exclusive right to use your design within Australia. If you want to protect your design overseas, you will need to apply for protection in those countries individually. Your Australian design application can be used as the basis to apply for the same design overseas within 6 months of your application.
How to Apply for a Design Right
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:
Part 1 – Registering Your Design
- Determine whether your design is eligible for protection.
- Work with your attorney to perform a search of existing designs and ensure yours is new and distinctive.
- Gather your documentation and lodge an application that includes ownership details, a representation of your design (such as a line drawing or photo) and the product’s name.
- The details of your application will be published on the Australian design database while your application is assessed.
- IP Australia will assess your application (also called a “formalities assessment”) and provide an outcome. If there are any issues with your application, you have 2 months to solve them. If there are no issues, or if all issues are resolved, your design is registered.
Part 2 – Certifying Your Design (Optional)
- Request examination of your design registration. This can be done when you file, or at any time after you file your design application.
- Your design will be examined to see if it meets the legal requirements for certification. This includes searching the world for similar or identical designs.
- IP Australia issues an outcome. You have 6 months to respond to any issues raised. If no issues are raised, or if all issues are resolved, your design will be certified. This allows you to enforce your rights and take legal action against anyone who uses your design without your permission.
Protect Your Unique Products and Designs with the Attorneys at Kings!
The design of your 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, branding or innovative ideas, our experienced Trade Mark Attorney Brisbane wide team can help you obtain design rights, patents and trade marks that ensure you have exclusive rights to your IP. Contact us today to find out more about our patent law or Registered Design Brisbane based services, or call us directly to book a confidential consultation.