What is a Design?
Under Australian designs law, a design means the overall appearance of a product resulting from one or more visual features of the product. A product is a thing that is manufactured or hand made.
So registered designs protect the appearance of products (as against patents which protect functions or methods).
The visual features that can be protected by a registered design include three dimensional features such as the shape and configuration of the product and two dimensional features of pattern and/or surface ornamentation.
Under Australian law, there is no requirement that the visual features of a design have to be aesthetically appealing or have eye appeal, so functional designs can be registered.
What are the benefits of registering a Design?
An Australian registered design can provide the owner with the exclusive right, in Australia, to commercialise a product which embodies a design that is identical to, or substantially similar in overall impression to, the registered design. The exclusive right includes the manufacture, sale or hiring, and also importation or keeping the product for commercial purposes.
Registered design protection can provide a useful enforceable right where no other registered IP right is available. For example, if you have designed a product with a new and commercially valuable appearance, that appearance can be protected by a registered design. If the product does not have functional benefits over earlier products, it may not be protectable by patent protection.
Further, even where a product has new functional features, and is suitable for patent protection, registered designs can complement patent protection, for example by providing a right which can be used to restrain copy-cat products which have a similar appearance to the original copied product. Under these circumstances, a registered design will likely be relatively straightforward to enforce compared to a patent, and is often less susceptible to complex arguments that the right is invalid. In some circumstances registered design protection may therefore avoid the need for patent enforcement.
Further, registered design protection may usefully supplement trade mark protection in some circumstances. For example, by protecting the new shape of a product or packaging before sufficient reputation in the shape has been accrued to support registration of a shape trade mark.
For further information, please download the below documents.