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.

Can my design be registered?

Designs that are new and distinctive can be registered. According to Intellectual Property Australia, “new” means it cannot be identical to any design previously disclosed anywhere in the world, including the internet. “Distinctive” means that the design is not substantially similar to any design previously published anywhere around the world.

If you feel that your design satisfies the above, you may be able to register. We do, however, recommend speaking with an intellectual property lawyer as there are certain types of designs that cannot be registered under the law. You should speak with a lawyer to see whether or not you can register your design and how you can go about the registration process.

How do I register a design?

To register a design you need to be the designer of the design or a person who has ownership rights over the design despite not personally designing it. For example, if your employee creates a design during the course of their employment with you, you may have ownership rights over this design and be able to register it. Of course, this will depend on the specific facts of the matter.

Before registration you should also have a look to see whether there are any other designs that are similar to yours. If there exists a design that has already been registered, you may not be able to register your design.

If you are sure that your design is able to be registered then you can lodge an application for registration. After the registrar conducts a formalities check regarding your design, you may request for the design to be registered.

What if I can’t register my design?

If, after speaking with an intellectual property lawyer, you realise that it is not legally viable to register your design, you may publish your design. Make sure that, before you publish your design, you are absolutely 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 and it becomes part of the common knowledge, 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.

Conclusion

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.

Lachlan McKnight

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