Design Dupes: When imitation isn’t the sincerest form of flattery
You may have wondered how certain retailers are able to sell furniture items, sometimes marketed as “replica furniture” for a fraction of the price of an original. There has been quite a lot of press around frustration in the design community at what appears to be blatant copying of local designers’ work.
So are these larger retailers crossing a legal line or teetering on the edge of what is acceptable in relation to designs?
In Australia, it is legal to advertise furniture as “replica”. This is because the replica furniture is often based on popular designs from the 1960s and 1970s where the copyright and/or design protection has expired, or was never even in place. However, many of the claims that designs are being copied relate to work from more recent times.
Unfortunately, many designers aren’t aware of their rights and the protection they can get for their designs.
What is a registered design?
A registered design protects the appearance or visual features of a product. This provides a legal right to prevent unauthorised use of a product for up to 10 years, in Australia. The Designs Act 2003 (Cth) requires a design to be registered before it is manufactured, and protection does not relate to the functional, mechanical or technical features of the design.
Under the Act a registered design gives the designer exclusive rights to commercially use, licence or sell the design.
Does copyright protect designs?
Designers should err on the side of caution when it comes to relying on copyright protection. Unlike many other countries, Australian copyright may apply to the design as represented in illustrations of a (product) design but does not extend to designs which are industrially applied. If a design is not registered with IP Australia before it is made public, the design owner is unable to prevent the legitimate copying of the design by a competitor.
Why is registering a design beneficial?
By not registering their designs, it appears the owners of the designs that have been “replicated” by large retailers have been disadvantaged commercially and may have lost sales. While it may seem like an unnecessary expense initially, if you are a creative professional making a living by putting work and effort into developing a design, it may be worthwhile spending the extra money to register your design.
By registering a design, you will be getting exclusive rights to make and sell the design. If a large retailer wants to sell and manufacture your design on mass, you may assign or license your design to them and therefore make money from your designs.
Contact one of our attorneys at [email protected] or on 07 3369 2226 to help you determine whether you need a registered design or other IP protection.