In Short
- Design protection in Australia is limited: Registered designs are protected for only ten years, after which replicas may appear without royalties.
- Copyright vs. registration: Registering a design forfeits automatic copyright protection, which lasts for the creator’s life plus 70 years.
- Replica furniture challenges: Legal “replicas” harm Australian designers, while UK reforms showcase stronger protections for creative works.
Tips for Businesses
Protect your designs by registering trademarks, patents, or designs to secure exclusive rights. Ensure your brand and design names are trademarked to prevent misuse in replica advertising. Learn from UK reforms to strengthen your strategies. Seek legal advice to navigate intellectual property protections and safeguard your work effectively.
Have you ever wondered how retailers can sell knockoffs or replica furniture without getting into hot water? Decking out your pad with genuine designer furniture is often not an affordable option. As such, replica furniture is always in high demand. Australian companies such as Matt Blatt, Bunnings, Target, Temple & Webster and Zanui sell replica furniture for a fraction of the price of an original. This article will look at the Australian position on replica furniture and examine developments in UK copyright law.
Industry Issues
Imagine you have designed a piece of furniture. Before manufacturing the furniture, you apply for design protection of your novel and distinctive design. This will cost a minimum of $200 in IP Australia fees. Now, imagine you have designed a whole portfolio of furniture. Do you apply it to protect all of your pieces without first knowing what may or may not be popular with the public? That uncertainty reflects the current situation in Australia.
Australia’s Position on Replica Furniture
In Australia, designers have minimal legal protections available for their work and are often deprived of the royalties they deserve. The Designs Act 2003 (Cth) requires a design to be registered before manufacturing. To be eligible to register a design, it must be novel and distinctive. But what does this require? A design must not be identical to any design previously disclosed worldwide. Further, the design must substantially differ from other designs published in Australia and the world.
The 10-Year Limitation of Design Protection
The protection afforded to designers via registration is limited to ten years compared to the 70 years offered to architectural works. After a ten-year period, replicas and counterfeits may start popping up, and they may be manufactured for little or no monetary compensation or royalty.
Registering a design will give you exclusive rights to make and sell the design. You may also assign or license others the right to exploit the design. For instance, if you are a boutique designer and have made a custom lamp, you can choose to register the design. If a large furniture retailer wants to sell and manufacture this design en masse, you may assign or license your design to this retailer.
Copyright vs. Design Registration
A downside to design registration is that copyright, an automatic right in Australia, is lost when industrially registering a design or 3D artistic work. This is because dual protection is impossible. This means you will lose the protection span of your lifetime plus 70 years, which is available under copyright. However, designers should err on the side of caution when solely relying on copyright protection. A potential pitfall is that copyright may not apply to a design industrially but only to the drawing of the design.
The Issue with Replica Furniture
In Australia, it is legal to advertise furniture as a “replica,” and it can be easily located online or in shops. This practice is particularly common for furniture designs from the 1960s and 1970s. The prevalence of these replicas is due to the expiration or absence of copyright protection for many designs from that era. During the 1960s and 1970s, copyright protection in Australia lasted only 50 years, significantly shorter than today’s 70-year term. As a result, many iconic designs from this period entered the public domain, allowing for legal replication.
Protecting Your Designs
To protect yourself as an Australian designer, it may be a good idea to register your name and design name. This ensures trademarks can be identified easily. Additionally, it guarantees that your name or brand name cannot be used to advertise the replica product.
Continue reading this article below the formUK Position
Significant changes have been made to UK copyright law to extend protection for works of artistic craftsmanship. In 2016, the UK government amended the Copyright, Designs and Patents Act 1988. The key modification was repealing Section 52 from 28 July 2016, which had previously limited copyright protection for industrially manufactured artistic works to 25 years. As a result, works of artistic craftsmanship now have equal copyright protection as other artistic creations. This includes paintings and sculptures, which enjoy protection for the creator’s life plus 70 years after death.
This change, introduced by the UK Intellectual Property Office, strengthens copyright protection for three-dimensional artistic works. It aims to give designers and creators longer-lasting control over their creations. However, the term “works of artistic craftsmanship” is still open to legal interpretation. Not all designed objects automatically qualify for this extended protection. These amendments mark a significant shift in UK intellectual property law.
In 2016, the Australian Design Alliance (ADA) highlighted Australia’s insufficient intellectual property protections for industrial design. The ADA warned that changes in EU and UK laws could make Australia a hub for replica products. This would undermine the rights of both current and past designers. The Productivity Commission reviewed Australia’s industrial design protections in the same year. Despite identifying weaknesses, the maximum protection period under the Designs Act 2003 (Cth) remains at 10 years.
This guide explains the essentials of trade marks and the steps required to register a trade mark.
Real-Life Examples
Aldi is a prime example of a business providing replica furniture. Notably, a prominent Australian designer, Mark Tuckey, has had his iconic eggcup stool design replicated by Aldi and sold for one-tenth of the price. Whilst this is great for consumers looking for a low price, it may hurt local designers and impact the value of their art.
Other Protections
Employing available IP protections can be a furniture designer’s best bet when seeking to protect their brand. These include:
- registering trade marks;
- applying for patents for functional and design aspects of any furniture; and
- considering design registration.
Key Takeaways
Australia’s industrial design protection framework could benefit from a review to provide designers with more comprehensive protection. The UK reforms could serve as a valuable case study for enhancing Australia’s intellectual property laws to safeguard the creations of Australian designers.
If you have a question about design protection, our experienced IP lawyers can assist as part of our LegalVision membership. You will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
Design rights protect the visual appearance of a product. In Australia, designs must be registered under the Designs Act 2003 (Cth) to secure legal protection, which lasts for 10 years. Registration grants you exclusive rights to manufacture, sell, or license the design.
Design registration protects the industrial application of a design for up to 10 years. Copyright, an automatic right in Australia, protects artistic works for the creator’s life plus 70 years. However, registering a design waives copyright for the design’s industrial use.
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