How Can I Protect the Design of my Product?

Apr 13, 2016
Reading Time: 3 minutes
Written by Zachary Swan

You’re a fashion designer and you wish to market and sell your latest designs throughout Australia. You may be asking yourself, how can I protect the design of my product? How do I stop others from using my designs? Registering your design is a great way to ensure that you can commercialise your products.

To ensure a quick and simple registration of your design, LawPath recommends getting in touch with an IP attorney.

The Designs Act

Designs can only be protected if they are registered under the Designs Act. Design registration entitles you to a certified examination of your designs. This allows you to enforce your rights and initiate proceedings against infringement.

Read our guide to find out more about the ins and outs of the Designs Act.

How Can I Protect the Design of my Product?

Step 1. Before You Apply

Before submitting your application, you should conduct a search of previous design registrations. All registered designs are available through the Australian Designs Data Searching and the Official Journal of Designs.

Step 2. Applying

There is no restriction on who can apply to have a design registered, however only certain people can be registered as the owner:

  • The designer;
  • The designer’s employer, if the design was made in the course of employment;
  • A person who contracted the designer to make the design; or
  • A person the designer has assigned.

The owner may be an individual, as well as a company, an association or a partnership.

When completing and lodging your application with the Designs Office of IP Australia, you must provide:

  • Your name and contact details;
  • Accurate representations of the design (5 identical copies)]; and
  • The application fee.

You should also include a statement of the design’s newness and distinctiveness. The statement is an important aspect of design registration. To significantly enhance your chances of registration LawPath recommends getting in touch with an IP attorney.

Registration or Publication?

In your application, you must request either registration or publication. Publication may be preferred if you believe that the design’s registration will not be certified or if you wish to make the design part of the prior art base. Designers that publish their design have no exclusive rights.

Step 3. Registration

During registration, there is no substantive examination of the design application. The design is registered once the Registrar has conducted a formalities check of the application. If the Registrar is not satisfied, you will have an opportunity to correct the application. Once the application has been completed and checked, a certificate of registration will be issued and the design recorded in the Register of Designs. Your design will be registered for 5 years and may be renewed a further 5 years.

Step 4. Examination

Examination is a precondition to infringement proceedings. As a registered owner, you cannot enforce your rights until the design has been examined and certified by the Registrar. This can be requested by the registered owner, a third party or the Registrar.

To be a valid registration, the Registrar evaluates:

  • The design; and
  • The newness and distinctiveness of the design compared with the prior art base.

To learn more about these aspects of design registration check out guide.

Once the Registrar is satisfied that the design is valid and there is no ground for revocation, you will be issued with a certificate of examination.

Certified Examination = A Profitable and Protected Design

A certified examination ensures that your designs are protected from infringement. With the exclusive right to use, sell and license, you can maximise the value of your designs and commercialise your products. As a fashion designer you can protect your garments from any unauthorised use by competitors, license your latest designs to other fashion houses or sell your unique fashions to major retailers.

Unsure where to start? Contact a LawPath consultant on 1800 529 728 to learn more about customising legal documents and obtaining a fixed-fee quote from Australia’s largest legal marketplace. 

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