Exploring the Perfect Little Design on our Thailand Trip
A design must be novel and original over the “prior art” in order to obtain a valid design registration. The prior art includes designs disclosed by prior use or publication in Australia.
The principal object of designs law and the registered designs system in Australia is to:
- give protection, through the grant of a monopoly right, to the visual form of articles which are commercially mass-produced; and
- encourage innovation in Australian industry to Australia’s net benefit.
Innovation is one of the most important factors influencing Australia’s future competitiveness and welfare.
- What is protected in a registered design is a product’s visual appearance. Unlike copyright works, designs must be registered in order for rights to subsist.
- A new or original design may be registered in Australia under the Designs Act 2003 (Cth) (‘the Act’). Section 5 of the Act provides that: “design”in relation to a product, means the overall appearance of the product resulting from one or more visual features of the product.
The phrase is interpreted in s7 as:
- “visual feature”in relation to a product, includes the shape, configuration, pattern and ornamentation of the product.
There are a number of criteria that must be met for a valid design registration. These include that the design must be new and there must be no non-confidential disclosure of the design prior to filing the design application. An applicant for registration must also show that the design is “new and distinctive”. Section 15(1) of the Act provides that:
A design is a registrable design if the design is new and distinctive when compared with the prior art base for the design as it existed before the priority date of the design.
It must not be identical to any design publically used in Australia or published in a document anywhere or disclosed in an earlier registered design application.
It must not be substantially similar in overall impression to a design publically used in Australia or published in a document anywhere or disclosed in an earlier registered application.
This is defined in s15(2) as follows: The prior art base for a design (the designated design) consists of:
- designs publicly used in Australia; and
- designs published in a document within or outside Australia; and
- designs in relation to which each of the following criteria is satisfied:
- the design is disclosed in a design application;
- the design has an earlier priority date than the designated design;
- the first time documents disclosing the design are made available for public inspection under section 60 is on or after the priority date of the designated design.
- An application will undergo a formalities check at IP Australia where the Registrar performs a check to ensure the application contain the required information and representations. The design will be registered if the application complies with the formalities. The Registrar will not assess the design in substance.
If you love designs, we think perfection in design is possible. The myth of a perfect design is possible through inspiration by the turtle. Why are turtles so awesome? They are prehistoric, having been around for almost 220 million years.
Turtles represent longevity and wisdom. They travel hundreds of miles during migration. At a 1% survival rate, only one out of 1,000 baby sea turtles make it to the ocean, facing many predators such as crabs, birds and fish.
Some of the unique design features of turtles include their body armour or shell, which can have unique markings, including spots, lines or other distinct shapes and growth rings that are triangular or geometric. Turtles are experts at having their very own special identification markings!
Lara Alexandra, Legal Assistant and Trade Mark Administrator
We are a team of trade mark attorney and IP specialists based on Gold Coast and Sydney. If you have any questions about trade mark and brand protection, contact us on 1300 77 66 14
Disclaimer. The material in this post represents general information only and should not be taken to be legal advice.