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Design Registration Australia: Replica Furniture

Australia has strict intellectual property laws yet there is a thriving business for replica furniture. How does this affect the law in relation to design rights?

The answer is in the intellectual property law itself. Designs registered at IP Australia are only afforded intellectual property protection for a period of five years with the option to renew the registration for another five years.

The purpose of Australia’s industrial designs system is to encourage people to invest in designs by giving designers the right to prevent others from exploiting the design.

In relation to designs protection, the Productivity Commission report provides:

“From an economic perspective, preventing free riding is desirable when it would otherwise have a significant detrimental effect on innovation. For example, in circumstances where the cost of developing a design is high and the costs of copying are low, there may be too little design creation in an unregulated environment. The right to exclude other parties from using a design provides opportunities for the owner to recoup their investment costs through exclusive exploitation of their design”.

Once the maximum period of ten years for design protection is up, the designs are up for grabs in the market. Manufacturers can take the design, make copies of the furniture, then sell the pieces at a much lower price as long as they clearly declare that the copied furniture is a “replica”.

Copyright Protection vs Design Protection

The Copyright Act 1968 (Cth) protects designs that are regarded as artistic works while designs that have industrial uses are covered under the Designs Act 2003 (Cth).

A designer’s 2D drawing (by hand or computer printed) is automatically protected under copyright law as an “artistic work”. Making a 3D reproduction of the drawing constitutes copyright infringement. Generally, copyright law protects an artistic work for as long as the artist or designer lives, plus 70 years or more after his or her death. The law prohibits a person from copying the artist’s work without permission from the artist or where the use of the copyright work does not fall under one of the exceptions to infringement in Australia.

However, if the artistic work is “industrially applied”, it loses copyright protection. “Industrial application” means the mass production of at least 50 copies of the product. Mass-produced designs are protected under Australia’s designs system for a maximum term of ten years. Only ‘new and distinctive’ designs may be registered. A design in relation to a product means the overall appearance of the product resulting from one or more features of the product, namely its shape, configuration, pattern or ornamentation. The exclusive rights are limited to the visual appearance of the product.

Take away points:

  • A designer’s 2D drawing of a product is automatically protected under copyright law as an “artistic work” for the life of the creator plus an additional 70 years.
  • Through “industrial application”, copyright protection is lost.
  • A furniture design can be protected through a design registration for a maximum period of ten years.
  • At the end of design registration, a replica of the furniture can be sold but should be disclosed as a ‘replica’ to avoid allegations of ‘misleading and deceptive’ conduct.
  • It is not illegal to sell replica furniture as long as it is not protected under a design registration.
  • Unregistered designs or those with already expired copyright protection can be used by others for reproduction as long as the products are clearly declared as “replicas”.

 

Jaclyn-Mae Floro, BCompSc

Contact W3IP Law on 1300 776 614 or 0451 951 528 for more information about any of our services or get in touch at law@w3iplaw.com.au.
Disclaimer. The material in this post represents general information only and should not be taken to be legal advice.

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