A registered design protects the appearance of a product or article. A registered design provides the legal right to use, license or sell articles or products having the appearance of the design that is registered, and to exclude unauthorised persons from exploiting the design.
In the context of registered designs, the word “design” is used in an artistic sense, and not in an engineering sense. Thus, registered designs are concerned with the appearance of an article or product, and not how the article or product works. Where it is desired to protect the way an article or product works, one must look to patent protection.
To be registrable as a design, the design must be new and “distinctive”. Distinctiveness is a difficult concept to describe in summary, but the determination of distinctiveness may be likened to an assessment of whether the design is similar in overall impression to a previously known or used design, or whether an aspect of the design is similar in overall impression to an equivalent aspect of a previously known or used design. This assessment of newness and distinctiveness is judged against designs which have been published in a document anywhere, used in public in Australia, or are the subject of a design application in Australia having an earlier priority/filing date.
The lodgement of a design application is a two step process of filing the design application, and requesting registration, although both steps may be taken concurrently. Generally if priority is claimed from another convention design application, the two steps will be taken concurrently, as there is a deadline prescribed for filing the request for registration.
Once the request for registration is lodged, subject to a formalities check, the design will be registered. However, the registration cannot be enforced and nor should threats of action for infringement be made until the registered design has been examined and certified by IP Australia.
The registration remains in force for five years from the filing date and is renewable for a further five year term.
Design Flow Chart
This flow chart illustrates the potential path to follow through the design registration process.
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