12 Jul Appearance is Everything: Protecting your IP with a Registered Design
If you’ve designed or developed something that looks unique it’s worthwhile considering how you can best profit from your efforts. Design protection stops others from copying the visual appearance of your product. In Australia, design protection can be obtained for up to ten years.
Design protection covers the visual appearance of a product. Visual appearance can include shape, configuration, pattern, or ornamentation. For example, maybe you have designed a tool with a unique shape to make your job quicker, or perhaps you’ve designed your own fashion jewelry, or developed an attachment making it easier to swap fins on a surfboard. Innovations having a unique appearance may be protected using a design. Similarly, it is possible to protect the pattern and ornamentation of a product such as print on fabric, design on toilet paper, or the tread on a tyre.
Obtaining design protection in Australia is a two-step process. First, you must register your design. To do this you will need to provide drawings showing all views of your product. Ideally, the drawings are simple line drawings showing how your product looks (remember designs don’t cover function, only appearance). The drawings are important because they are what will be used if you ever need to enforce your design against an infringer. Importantly, when determining infringement, the court will consider the potentially infringing product against the drawings in the design (not your actual product).
Second, once your design is registered it is eligible for certification. Certification is not automatic. If you find that someone has copied your product without your permission, and you would like to enforce your design, you will need to first have it examined and certified. To be certified your design must be new and distinctive. In other words, there is no other design identical to yours or nearly identical to yours. The Examiner will consider your design against other prior published designs (including documents and actual products) to determine whether your design is new and distinctive. Importantly, your own product may be used against you if you have publicly shown it before filing your design. Accordingly, keep your product confidential until you have filed your design application. Provided the Examiner doesn’t find any relevant documents your design may be certified and is enforceable. Design protection in Australia is a cost effective way to protect your invention, and if your product takes off internationally it is possible to extend your design protection outside Australia. If you’d like to learn more about designs (or other ways to protect your invention) please contact us.