Registered designs protect the aesthetic or visual appearance of manufactured or hand made products intended for commercial production, as distinct from artistic works that are generally protected by copyright, or functional features covered by patents.
Both 2D designs and the 3D shape of products, can be protected by way of design registration.
Products can be functional as well as aesthetic. Examples of products suitable for design registration are furniture, embossing on flatware, patterns printed on fabric or the cross sectional shape of a product that varies in one or more dimensions, such as the cross sectional profile of plastic or metal extrusions.
However, design registration is generally excluded for the tactile feel of a product, materials used for the product, any indefinite dimension (eg length of an extrusion), or a repeating pattern (eg a patterned fabric).
Registration of a design application will occur soon after application, provided all of the formal registration requirements are met. There is no automatic examination.
Overlap with Copyright protection
Under certain circumstances, copyright in plans, drawings or artwork can become unenforceable where a product is commercially produced. Under such circumstances, design protection can provide an alternative form of
Publication or use before application
Publication of the design anywhere in the world, or manufacture of the design in Australia, before the priority date will lead to invalid registration. No sale, offer for sale or publication of the product embodying the design should be made prior to first filing of the application for registration of the design. To do otherwise is likely to result in an invalid design registration.
The following persons are entitled to be the owner of a design registration:
- the person(s) who created the design (the designer(s));
- if the designer(s) created the design in the course of employment, or under a contract, with another person—that other person eg employer, unless by agreement to the contrary;
- a person who derives title to the design eg by assignment.
The examination process must ordinarily be completed within six months of issue of a first examination report. Third parties can file documentary evidence against the validity of the registration. It is not possible to file divisional applications.
Test for Validity
The test is whether the design is new or distinctive. More weight is to be given to similarities between prior art designs and the registered design.
There are no provisions for formal opposition to registration/certification of a design. Third parties may however file objections in the form of documentary evidence during the examination process.
Designs are registered for an initial term of five years, renewable for a further five years, making a total maximum term of 10 years.