Do you have a new and distinctive design which you want to protect others from copying? Perhaps you work in certain industries where design is of particular importance, such as industrial design or fashion. Registering a design provides you with strong protection against wannabes and copycats. However, there are some legal hurdles you will need to jump through. This article will explore two fundamental points every business should consider before they apply for a design registration in Australia.

1. What is a Design?

A design registration seeks to protect the visual appearance of a product or item which has a commercial and industrial use. These can range from bathroom and kitchen fittings, clothing, furniture, bags, cars, household items and electronic goods. In fact, you’ll be surprised to learn how many everyday items you use which have a design registration. When you register for a design with IP Australia, they grant you an initial term of five years protection which you can renew for an additional five years after that. When IP Australia registers a design, the designer has the exclusive right to exploit their design for the lifespan of the registration.

It’s important to remember that design does not apply to the fundamental form of the product itself. Rather, it refers to the visual features of the product such as the shape, pattern, ornamentation or configuration. For example, one of the oldest and most iconic designs is the shape of the well-known Coco-Cola bottle. While the fundamental form of the product is a bottle, the design registration prohibits manufacturers from replicating the particular shape.

2. Does my Design Meet the New and Distinctive Test Requirement?

For IP Australia to grant a design registration in Australia, the design must be new and distinctive when compared with prior art at the time of the application.

When considering the prior art base, IP Australia will review designs which have:

  • Been publicly used in Australia;
  • Published in a document overseas or in Australia; or
  • Publicly disclosed in design applications.

You cannot register your design if someone has already commercialised a design, the design is existing in the market, or the design is published anywhere in the world. The reason for this is because the design will no longer be new and distinctive in these circumstances. Rather, IP Australia will regard it as part of the prior art base.

To support your application for a design registration, you may wish to include a statement of newness and distinctiveness. While this is not mandatory for applicants, it is worthwhile to include, as examiners are required to have regard to any features identified in the statement.

3. Am I the Rightful Owner of the Design?

Only the right owner of a design can make an application for a design registration. As a general rule, a person will be regarded as the owner of a design if they satisfy at least one of the following criteria:

  • They developed the design (i.e. they are the designer);
  • They are the employer, in circumstances where an employee made the design in the course of employment;
  • They are the person who contracted another party to make the design for them; or
  • They are the person who was assigned the rights to the design in writing.

If two parties conceived a design, they must make a joint application to protect each of their interests. In circumstances where employees or contractors made a design, it is prudent to address intellectual property ownership in the contract of engagement to avoid subsequent disputes regarding ownership. To this end, an individual, company, partnership, or an association can make a design application to IP Australia.

Key Takeaways

Design law seeks to protect the look of a product, as opposed to the fundamental form. It provides a designer with an exclusive proprietary right to exploit their design for the length of their registration. For IP Australia to grant a design registration, you must satisfy the new and distinctive threshold test. It is important to remember that commercialising your product or publicising your design will destroy your right to obtain a registration, as it will no longer be deemed new and distinctive. Lastly, remember that where two parties conceived a design, they should submit a joint application to protect both interests.


At LegalVision our lawyers have specialised expertise in all aspects of the intellectual property law. If you would like to speak to one of our experienced IP lawyers about designs, call us on 1300 544 755 for fill in the form below to get in touch.

COVID-19 Business Survey
LegalVision is conducting a survey on the impact of COVID-19 for businesses across Australia. The survey takes 2 minutes to complete and all responses are anonymous. We would appreciate your input. Take the survey now.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.

The majority of our clients are LVConnect members. By becoming a member, you can stay ahead of legal issues while staying on top of costs. For just $199 per month, membership unlocks unlimited lawyer consultations, faster turnaround times, free legal templates and members-only discounts.

Learn more about LVConnect

Ayatalla Lewih
Need Legal Help? Get a Free Fixed-Fee Quote

If you would like to receive a free fixed-fee quote or get in touch with our team, fill out the form below.

  • By submitting this form, you agree to receive emails from LegalVision and can unsubscribe at any time. See our full Privacy Policy.
  • This field is for validation purposes and should be left unchanged.
Our Awards
  • 2019 Top 25 Startups - LinkedIn 2019 Top 25 Startups - LinkedIn
  • 2019 NewLaw Firm of the Year - Australian Law Awards 2019 NewLaw Firm of the Year - Australian Law Awards
  • 2020 Fastest Growing Law Firm - Financial Times APAC 500 2020 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review 2020 AFR Fast 100 List - Australian Financial Review
  • 2020 Law Firm of the Year Finalist - Australasian Law Awards 2020 Law Firm of the Year Finalist - Australasian Law Awards
  • Most Innovative Law Firm - 2019 Australasian Lawyer 2019 Most Innovative Firm - Australasian Lawyer
Privacy Policy Snapshot

We collect and store information about you. Let us explain why we do this.

What information do you collect?

We collect a range of data about you, including your contact details, legal issues and data on how you use our website.

How do you collect information?

We collect information over the phone, by email and through our website.

What do you do with this information?

We store and use your information to deliver you better legal services. This mostly involves communicating with you, marketing to you and occasionally sharing your information with our partners.

How do I contact you?

You can always see what data you’ve stored with us.

Questions, comments or complaints? Reach out on 1300 544 755 or email us at

View Privacy Policy