Have you created a unique design for a product? Will this design be mass-produced and used commercially? Do you want to stop others from using your design?

What is the Designs Act?

The Designs Act 2003 (Cth) provides designers with a quick and simple framework to register and protect their designs. Protecting designs is important to the commercialisation of products. A successful registration grants the owner exclusive rights to their design. The Act, however, only protects the visual appearance of a product and a design can only be protected from infringement if it is registered.

What is a design?

A design is defined in the Act as the ‘overall appearance of the product resulting from one or more visual features.’ The visual features encompass the shape, configuration, pattern and ornamentation of the product but do not extend to the product’s feel or the materials used. The Act only protects the design’s aesthetic value and not its functionality, however the functionality of the product may be protected by patent.

In other words, a furniture manufacturer may not be granted a registered design for a standard chair, but may successfully register the chair’s unique shape and pattern. If the visual features enhance the functional value of a product, such as an ergonomic cushion of a chair, a design application may still be made. A range of designs can be registered across a variety of industries including fashion and textiles, manufacturing and digital media.

Why register your design?

Registration is necessary to protect your design from infringement. This is imperative if the design is to be mass-produced and have a commercial or industrial use. The term of protection for a registered design is 5 years from the filing date of the application, this term may be extended a further 5 years.

How to Register Your Design

To qualify for registration, a design must be new and distinctive when compared to the prior art base existing before the priority date. The prior art base includes designs publicly used in Australia, designs published in a document nationally and internationally, and designs that have been disclosed in earlier design applications.

  • A ‘new’ design must not be identical to any of the designs within the prior art base.
  • To be ‘distinctive,’ the design must not be substantially similar in overall appearance to any other designs within the prior art base.

If the design is qualified as new and distinctive, the designer must lodge a design application with the Designs Office of IP Australia, where it will be registered. All registered designs are publicly available through the Australian Designs Data Searching and the Official Journal of Designs.

Alternatively, a designer may prefer to publish rather than register their design if they believe that the registration will not be certified or as a commercial tactic to prevent others from registering.

What are the rights of the owner?

A successful registration grants the owner exclusive rights to control the design and its use in products, during the term of registration, such as:

  • The right use the design
  • The right to sell the design.
  • The right to license the design.

As a registered owner you can take action to enforce these exclusive rights against those infringing your design. This action is available only when the design has been examined and certified by the Registrar.

LawPath has access to highly qualified IP attorneys that can help protect your design. Contact a LawPath consultant on 1800LAWPATH to learn more about customising legal documents, obtaining a fixed-fee quote from our network of 600+ expert lawyers or any other legal needs.

Zachary Swan

Zachary is a marketing co-ordinator at LawPath assisting the content team. With a keen interest in digital media and IP law, he has completed a Bachelor of Law and Communications at the University of Wollongong.