How can I register a Design?
Design registration is used to secure exclusive rights to exploit the aesthetic look of an object which you have designed. That object could be a practical item (such as a lamp, chair or suitcase), a garment or piece of clothing, or an operational machine. The Design can protect the look of your product as a whole or a specific part of it. It can also protect the 2 dimensional features of the object (pattern or ornamentation) or the 3 dimensional features (shape and configuration).
When should I apply?
It is important to apply for a Registered Design as early as possible and before any significant disclosure of publication of the Design has been made. This is because a Design has to be new in order to be enforceable, which means that even your own products can invalidate your Design if they are available to the public before you file.
What is the difference between a Registered Design and a Certified Design?
A Design will be issued a registration certificate once it has passed a formalities test. However, a Registered Design is not enforceable until it has been examined and certified by IP Australia. Examination can occur at any time following registration, either on the request of the owner or by a third party. If a third party requests examination, they can provide the Examiner with their own prior art to be considered in determining if the Design should be certified.
What protection does a Registered Design provide?
A Registered Design provides you with an exclusive monopoly to commercialise your design and prevent similar Designs from being sold and manufactured. The scope of your protection generally depends upon the originality of your Design; the more original it is, the greater the scope for infringement. If a Registered Design is only slightly different to what has preceded it, the more similar the copy will need to be in order to infringe the Design. A standard Design Registration lasts for 5 years and can be renewed for one further period of 5 years only, so the maximum term is 10 years.
Registered Designs & Copyright Law
A Registered Design provides you with rights to take action against other traders who may have copied the look or physical appearance of your product. This design could be a 2D pattern or ornamentation applied to a product or the 3D shape and configuration of an object. Commonly utilised in the fashion, industrial and manufacturing industries, Registered Designs are used as a deterrent and as a powerful cause of action against copycats and coattail riders.
In order to be certified (and therefore enforceable), your Design must be new and distinctive when compared to the prior art base. This encompasses any pre-existing product which may be discovered, whether or not it is already registered as a Design. The more unique a Design, the greater the scope for enforcement, and the better chance you have at registering and protecting it. Therefore, the careful drafting of the Design Application is crucial to ensure that the unique and distinctive features of the Design are highlighted in favour of any more generic features.
Our Copyright lawyer can assist with any of the following areas regarding Designs and intellectual Copyright:
Design Registration: We can attend to the lodgement and processing of your application on your behalf to maximise the prospects of obtaining an enforceable Certified Design. This includes preliminary design register searches, drafting your Design Application, requesting examination, and dealing with any objections which may be raised. You might also want to consider our 10 Tips to Secure Powerful Enforceable Designs before deciding whether design registration is right for you.
Y Watch Design Monitoring: This is an excellent tool for designers working with FMCGs (fast moving consumer goods) and will allow you to obtain a regularly updated snapshot of any newly Registered Designs which may compete or may potentially pose an infringement risk. In particular, Y Watch will allow you to readily identify who are the parties who are actively registering Designs in your field and to either focus on particular design owners or more generally to cover the full range of similar products in your industry.
Copyright Protection: We offer detailed and practical advice regarding protection, ownership and assertion of Copyright, as well as remedies available to you where your intellectual Copyright may have been infringed. This involves establishing Copyright Infringement and assisting you in protecting your intellectual property.
Commercial Agreements: We can assist with drafting or review of any IP related agreements dealing with the right to use or transfer of ownership of your Design, Copyright or other IP rights. We also frequently assist with preparation of trading terms dealing with IP rights for graphic designers, website developers, publishers and fashion labels.