Design registration protects the appearance of new products
What is a design registration?
Design registrations are commercial assets which can be used to stop others making, using, selling and/or importing (etc) products which look ‘substantially similar in overall [visual] impression’ to the registered designs. They last for up to 10 years and the application process is inexpensive and straightforward.
The design registration system is the Australian version of the design patent systems available in other countries.
What is the value of design registration?
Generally speaking, in Australia, if a manufactured product is on the market and not covered by a patent or design registration, your competitors are free to copy it.
Registrations can be used to preserve profit margin by limiting competition and/or to generate new income streams by licensing, and can be bought and sold like other commercial assets.
Registration is often recommended if:
- the appearance of the product is important (e.g. many consumer goods);
- the appearance of the product is dictated by an important function;
- there is a significant risk of direct copying; and/or
- a product is of particular commercial importance and an additional layer of protection alongside patent protection is warranted.
Qualifying for protection
To qualify for protection, the design must be new and distinctive. Newness and distinctiveness are judged against designs:
A. publicly used in Australia; and/or
B. published in a document within or outside Australia;
before an initial application for registration is filed.
‘New’ means not identical to any of these earlier designs. ‘Distinctive’ means not ‘substantially similar in overall [visual] impression’ to any of these earlier designs.
Keep it secret
If registration is of interest, it is important to keep the design secret until an initial application for registration is filed, so that it does not fall into category A or B, although Australia’s 12-month grace period may excuse your own publications.