Design registration protects the appearance of a product for up to 10 years. This can include features of the design such as the shape, configuration, pattern and ornamentation which give the product a unique appearance.
Unlike other countries, there are no unregistered rights in a design. As a consequence, in Australia the protection of a design must be applied for at the Designs Office and has a maximum term of 10 years.
What are the requirements to register a design
There are two main requirements to obtain registration of a design:
- “Relative” novelty, and
The most important requirement to register a design is that the design is new. This means that the design must not be identical to a design that was previously published in a document in or outside of Australia, or used in Australia.
The term “relative” refers to the prior use of the design which is only considered if the use was within Australia. This is in contrast to patents where absolute novelty is required.
Another difference to patents is that there is no “grace period” in Australia. Once the design has been published, it is not possible to register the design. As such, by publishing your design, you automatically lose your monopoly rights.
The second requirement is whether your design is distinctive. This means that your design cannot be substantially similar in overall impression to a design that was previously published.
Distinctiveness can be difficult to assess as the test to determine whether two designs are substantially similar in overall impression is relatively subjective. We can advise you in this regard when we discuss your design in more detail.