Design protection plays a pivotal role in fostering innovation, encouraging creativity, and safeguarding the intellectual property of individuals and businesses. In Australia, the legal framework for design protection is robust and aims to provide creators with the tools they need to protect their unique designs.

Legal Framework

In Australia, design protection is primarily governed by the Designs Act 2003 (Cth). This legislation outlines the criteria for design registration and sets out the rights and obligations associated with registered designs. The overarching goal is to strike a balance between rewarding creators for their innovations and promoting healthy competition in the marketplace.

The design law protects the visual appearance of a whole product that has physical and tangible form and is manufactured or handmade on a commercial scale, for example, clothes, bags, vehicles or furniture.

Designs that cannot be registered include concepts or computer processes or graphics, brand name or logo, material, function or size of the physical product, designs comprised of flag or emblem of a country and scandalous designs.

Design Registration Process

To obtain design protection in Australia, creators must undergo a registration process administered by the Australian Designs Office, a division of the Australian Government Intellectual Property (IP) Australia. The process involves submitting an application that includes visual representations of the design, a description of its features, and details about the creator’s entitlement to the design.

Once the application is submitted, it undergoes a formalities examination to ensure it meets the necessary requirements. If the application passes this stage, it is then subjected to a substantive examination to assess the design’s novelty and distinctiveness. Upon successful completion of these steps, the design is registered, and the creator is granted exclusive rights to use, license, or sell the design for a specified period.

Key Requirements for Design Registration

For a design to be eligible for registration in Australia, it must meet certain criteria outlined in the Designs Act.

The key requirements may include:

1.         Newness and Distinctiveness: The design’s visual features must be new and distinctive compared to existing designs.

2.         Registrable Subject Matter: The design must relate to a registrable category, such as the shape, configuration, pattern (three-dimensional features), or pattern or ornamentation of a textile (two-dimensional or surface features, including colours).

3.         In Relation to a Product: The design must be concerning a product, namely, a thing that is manufactured or handmade.

4.         Creator’s Entitlement: The creator must be entitled to the design, either as the original designer or through a valid transfer of rights.

In order to legally enforce a registered design against design infringement, the design must be certified.

Benefits of Design Protection

Securing design protection in Australia offers creators several benefits, including:

1.         Exclusive Rights: Design registration provides the creator exclusive rights to use, license, or sell the design for up to 10 years (an initial period of five years with the right to renew), providing a competitive advantage in the market.

2.         Commercial Value: Registered designs can enhance the commercial value of a product or brand, making it more attractive to consumers and investors.

3.         Legal Remedies: In the event of infringement, registered design owners have legal remedies available, including the ability to seek damages or injunctions to stop unauthorised use.

4.         Overseas Application: Within six months of the Australian application, a designer may apply for the same design right internationally.