Design is often what makes a product unique and distinctive. For example, consider an iPhone, a Ferrari or a Chanel dress. All have a unique visual design that sets them apart from other products. However, designs can be copied, flooding the market with cheap knock-offs. To guard against this, you can register and certify your designs with IP Australia, giving you the right to take legal action against imitators. This article explains how to obtain a registered design to protect your product.
A Registered Design Must Be Unique
Before applying for a registered design, you must first ensure that your design is unique. To successfully register a design, it must be both ‘new’ and ‘distinctive’.
‘New’ means that the design must not be identical to any design previously disclosed. Aside from already being on the market, ‘previous disclosure’ includes being revealed in publications in Australia and overseas, such as magazine previews. Therefore, if you wish to register a design, you should not have made the design public before starting the registration process.
‘Distinctive’ means that your design must not be substantially similar to any other previous design. This is similar to the ‘new’ criteria but focuses on the overall impression of the design, rather than identicality. Therefore, before starting the registered design application, search both the design register and the market to ensure that your design has not been used before.
The Registration Process
Registering a design gives you exclusive rights to use the design for five years, with an option to renew for one more five-year period. During these five or ten years, you have the right to send cease and desist letters and take legal action against anyone who imitates the design. You can register a design by following three steps:
- Prepare drawings
- Apply for registration
- Request an examination
1. Prepare Drawings
Your application must include drawings and images that demonstrate the overall visual features of your design. You must prepare drawings that show enough perspectives and views to fully display your design. Each view must show the same design as the others, including having the same colour.
2. Apply for Registration
After preparing the drawings, you then file your application online through IP Australia. The examiner will first perform a formalities check to ensure that you have provided enough information. Once your application passes the formalities check, IP Australia will register and advertise the design in the Australian Official Journal of Designs. Your design will also be available on the Australian Design Search database.
3. Request an Examination
However, for your registered design to be legally enforceable, it must also be certified. To be granted a certified design, you must request an examination. At this stage, the examiner will assess whether your design is new and distinctive. If so, you will receive the legal right to take action to stop others from using the design.
Certification is a separate step to registration. Registration alone does not grant enforcement rights, but it does create a form of intellectual property, allowing you to license the design to others. For example, if you want to allow other manufacturers to pay to use your design. Registration also stakes your claim to the design, so IP Australia recognises you as the first to release the design in Australia.
Registering a design can be a great way to ensure you have the exclusive right to sell your product. Having a registered design is appropriate when the visual design greatly contributes to what makes the product unique and distinctive. However, because IP Australia will compare your design with other designs on the market, it is important to obtain registration before you advertise the product.
If you need assistance with registering a design, call LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.
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