What is a design?
A design is the visual appearance of a product, such as a skirt with ruffles or the cut or decorative pattern on a shirt. If the design is unique, it can be registered. This gives the designer protection for the visual appearance of the product, but not its feel, material or function.
If the feel, material or function of bed linen could be registered as a design, the market would become monopolised. However, Australian artist Ken Done was able to register pillowcases and quilt covers featuring his unique artwork because they were new and distinctive.
Similarly, while a designer would not be able to register the feel, material or function of jeans, Australian designers Sass and Bide were able to register a unique design for detailed straight leg jeans featuring particular designs of the pockets.
A design must be new and distinctive to be registered. This means it can’t be the same or similar to designs already produced (even in a sketch). There are certain designs that can’t be registered, including designs featuring scandalous graphics.
To prevent registration being refused or revoked, applicants need to be sure their design is new and distinctive. Before filing a design application with IP Australia, you can search existing design records. Legal action may be taken against you if you infringe the rights of another designer.
A registered design that has been examined and certified gives you a legally enforceable right to use your product’s design and prevent others from using your design without your permission.
Advice and assistance in design registration can be sought from a professional. Patent attorneys and intellectual property lawyers can be found in the Yellow Pages and on the IP Professional’s and other sites page on IP Australia’s website.
If you have already disclosed your design (e.g. exhibited, sold copies, catalogued or posted your lookbook on your website), you may no longer be able to register it as it may not be considered to be new and distinctive. However, you can use a formal publication process to prevent others from obtaining certification of a similar design.
This alternative option to registration is called publication. While this doesn’t give you any rights in respect to the design, it does prevent others from obtaining certification. Therefore, if you are unable to register your design but want to prevent others from obtaining registration for the same design, a formal publication request can be used.
You may consider publication as a defensive strategy where registration cannot be obtained. For the most up-to-date fees see IP Australia’s Designs Fee page.