The design of a product refers to its shape, configuration, ornamentation and pattern, which must be 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 make it unique, then you can apply for a patent for the product. However, before you decide whether you should register your design or not, you should gain an understanding of the process of registration.
Is Your Design Registerable?
IP Australia determines that in order to register your design, it must be:
- new, meaning it cannot be identical to any design previously disclosed anywhere in the world, including online; and
- distinctive, meaning the design cannot be substantially similar to any other design previously published anywhere.
If your design satisfies the above, you may be able to register it. However, we recommend speaking with an intellectual property lawyer, as you cannot register certain types of designs under the law.
How Do I Register a Design?
To register a design, you need to be the designer or a person who has ownership rights over the design. If your employee creates a design during their employment, you may have ownership rights over this design as their employer. Of course, this will depend on the specific facts of the matter.
Before registration, you should also have a look to see if any other designs are similar to yours. If a design similar to yours has already been registered, you may not be able to register your design.
If you are confident that your design is new and distinctive, you can proceed with an application. Once the registrar completes a formalities check, you can then request the registration of your design.
Continue reading this article below the formWhen Should I Register My Design?
Say you would like to seek protection against your design being copied or used without your permission. In this instance, it is important to register that design in order to safeguard your intellectual property rights. There are some considerations as to when you should register your design. These considerations are as follows:
| Consideration | Explanation |
| Timing | It is ideal to register your design before launching it commercially or disclosing it publicly. Registering it beforehand will help you claim priority and prevent someone else from claiming and registering a similar design before you get the chance to do so. |
| Prototyping | During the prototyping or pre-launch phase, you should consider registering your design to obtain priority protection prior to its official launch. Doing so ensures that your design is safeguarded and secure. This way, you will have protection before releasing your design to the public. |
| Ongoing Changes | To maintain your intellectual property rights and ensure the best possible protection for your product designs, it is essential to keep your registrations up to date, particularly if you are making innovative changes or improvements. This will not only safeguard your designs but also provide you with the framework to continue developing your ideas and bringing them to life. By staying on top of your design registrations, you’ll be able to maintain control over your intellectual property and ensure that your innovative designs are protected. |
What If I Cannot Register My Design?
After speaking with an intellectual property lawyer, you may realise that it is not legally viable to register your design. In this instance, you may publish your design. Make sure that, before you publish your design, you are sure that it cannot be registered.
If you publish your design, you will not gain any rights in the design but it could serve strategic purposes. For example, if you publish your design, it becomes part of the common knowledge. As a result, it will no longer be new and distinctive. This means that no one else (including yourself) can register a design that is similar to yours.
Key Takeaways
The process of registering a design can be complex, and it is always best to speak with an intellectual property lawyer in order to understand your options in relation to the registration process. If you have any questions about intellectual property or need advice in starting your application, our experienced intellectual property lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
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