24th November 2016 - ADMIN

Protecting the Unique Shape and Appearance of your Design from being copied by Competitors

Design law protects the unique look and shape of a product rather than the way a product is used and works. A registered design protects the unique shape of a product’s visual appearance. Designs cover the shape, configuration, pattern and ornamentation applied to both industrially manufactured and hand-crafted products.

Therefore, a design is mainly concerned with how the product looks rather than the way it functions. It is therefore a very valuable protection for designers and creatives who wish to protect their creations and designs from being replicated by others.

If you are a designer, you should consider obtaining design law protection to safeguard the time, cost and energy that you have invested into developing your products.

Examples of Australian Design Applications and Registrations

• The De’ Longhi Kettle Appliance
• Seafolly swimwear
• Bank and Olufsen Loudspeaker
• Aktiebolaget Electrolux vaccum cleaner head nozzle
• Reebok athletic shoe upper
• KABUSHIKI KAISHA TOYOTA JIDOSHOKKI Tow Tractor
• An automobile owned by Nissan Jidosha Kabushiki Kaisha
• Outdoor Unit for Air Conditioner owned by Mitsubishi Electric Corporation
• RA Brands, L.L.C. Firearm stock
• Telebrands. Corp. Hinged cooking utensil

In order to obtain protection for your product, designs must be registered to obtain rights. You have the following options when you start the design application at IP Australia:

(1)        Publish the Design

Publishing the design does not provide you any enforceable rights in the design and a published design may not be registered or examined. However, publication may be used strategically to prevent others from obtaining any rights to the same design.

(2)        Registering the Design

If registration is requested, the design application will be subject to a formalities check to ensure the necessary information and representations are present. If the design passes the formalities check, the design will be registered and advertised in the Australian Official Journal of Designs.

You may also delay having the design registered (and published) for six months as a marketing strategy, for example, to keep the design a secret from your competitors.

(3)        Registering the Design and Examination

Your design may be registered and examined at the same time otherwise you may request certification at any time in the future. Examination of your registered design allows you to enforce your rights to the design i.e. take legal action against the competing party. Examination may result in your design being successfully certified and published in the Australian Official Journal of Designs or IP Australia may issue an adverse report giving reasons why your registration in its present form does not meet the requirements of the Designs Act. In this case, you will have the opportunity to make submissions and/or amend the design registration.

As always with intellectual property, the ultimate goal of legal protection for designs is to encourage designers to create products that are new and distinctive in appearance as it gives them the opportunity to recoup the time, energy and investment they have made in bringing their products to market.

Be careful not to disclose your design before applying for registration otherwise you will not meet the requirements for registration. This is because a design has to be new to be registered.

Disclaimer. The material in this post represents general information only and should not be taken to be legal advice.