A design refers to the features of shape, configuration, pattern or ornamentation, which gives a product a unique appearance, and must be new and distinctive.
Design registration is intended to protect designs, which have an industrial or commercial use.
A registered design gives the owner of the design, exclusive rights to commercially use it, licence or sell it.
Designs often have a trade mark and/or a patent, which work in sync to protect the bundle of intellectual property rights.
Designs and patents
It is possible to protect a product with both a patent and a registered design. The design registration would protect its specific appearance, while the patent would provide broader protection for functional aspects.
Designs and trade marks Although shapes of products may also be protectable by way of trade mark protection, that protection has quite limited applicability and detailed consideration needs to be given to its appropriateness in specific situations. Design registration is the primary way of protecting product shape and other aspects of appearance.
Designs and copyright In most cases, the drawing or models on which a design registration is based will also be automatically protected by copyright. However, copyright cannot usually be used to prevent copying of the product itself and reliance should not be placed on copyright protection alone without taking advice beforehand, as this issue involves complex considerations of overlapping provisions of copyright law and registered design law.
The Designs Act 2003 (Cth) permits registration for a maximum of 10 years after which others can freely use that design without infringement. A renewal fee is payable at the 5th year in order to obtain the maximum 10 year term of protection.
Sweeny Legal can advise on:
preparation and filing of applications for design registration;
design searches and assessments;
conducting or defending oppositions;
the provision of infringement and validity opinions, and the enforcement of patent and design rights.
A design, such as shape, configuration of a pattern, gives a product a unique visual appearance, if it is new and distinctive, it can be registered with IP Australia.
To enforce a design right in court, it must be successfully examined, meaning it must be:
a new design compared to any design in the world;
distinctive from any other published design, online or in circulation;
a registered design that has been certified after examination allows the holder to exclude others from using the design in any commercial way within Australia.
Examples of registered designs include the look, shape and feel of a mobile phone, the design of a unique keel or a suspended flooring system.
For more information on Design Protection and IP rights generally Contract Sweeny Legal on
02 4228 1864 or 0417 699 645