The appearance of your product can be a valuable commercial asset. It can be vital in setting yourself apart from other competitors in the industry. When you register a design, you register the visual appearance of the product as a design under the Designs Act 2003, for up to 5 years.

The design of a product refers to its shape, configuration, ornamentation and pattern, which are new and distinctive, and give your product a unique appearance. The appearance of the product can be registered as a design. If the functionality or the mechanics of your product that make it unique, then you can apply for a patent for the product.

Criteria for registration

For a design to be registered, it must be “new” and “distinctive”. A design is new if it is not identical to any design that has been seen anywhere in the world or on the Internet. A design is distinctive it is not substantially similar in overall impression to any other design that has been previously published anywhere in the world including the Internet.

Whether a design is new or distinctive must be determined on a case by case basis with research done as to all other designs that may be substantially similar all over the world and on the Internet.

There are restrictions against registration. Designs that fall under these restrictions cannot be registered:

  • The Australian currency
  • Scandalous designs which are offensive to the public or shocking
  • Medals
  • Layouts for integrated circuits

If you have previously disclosed your design publicly then it may also not be registrable. This is because once your design has formed part of the public knowledge, it cannot be considered new or distinctive for the purposes of registration.

The benefits of registration

Upon registration, you will gain a legally enforceable right and interest in the design which will allow you to use your design profitably while being able to prevent competitors from using your design without your permission.

You will also be able to license your design to other parties. This means that you can enter into a license agreement with other parties to use your design to generate revenue and publicity towards your business.

A registered design can also be identified as “personal property” which can increase in value and later be sold at a profit.

A design can only be registered for 5 years. After this time the design is considered to be part of the public knowledge and becomes free for anyone to use.

Conclusion

Identifying the design of a product rather than the mechanisms of the product can be difficult. For this reason it may be in your interests to consult with an intellectual property lawyer to obtain legal advice about your design and how it can be registered, to utilise its full potential to generate money for your business.

For more information on intellectual property law, please see: https://legalvision.com.au/category/intellectual-property/ and https://www.ipaustralia.gov.au/designs

Ursula Hogben

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