If the appearance of your product is important you should consider registered design protection. A registered design will not protect the functionality of your product, but will let you stop others from commercialising a product with the same or a similar appearance. Design registration is therefore the right choice for protection if your product’s design gives your product a unique selling point in the market.
Design registration gives you the exclusive right to make, import, sell, or use a product that embodies the design for a limited period.
A registered design protects one or more visual features of a product. This could be a three-dimensional feature, such as the shape or configuration of a product, or a two-dimensional feature, such as pattern or ornamentation of the product. Even if they serve a functional purpose, these features can still be protected.
A design is considered to be ‘new’ unless it is identical to another design, and is considered to be ‘distinctive’ unless it is substantially similar in overall impression to another design. Your design must meet this criteria for your design registration to be valid.
When assessing if two designs are similar, more weight is given to the similarities between the designs than to the differences. If there are particular visual features that give a design its distinctive character, and are therefore more valuable, we can emphasise these by filing a “Statement of Newness and Distinctiveness”. When comparing the design to other designs, any features emphasised in a Statement of Newness and Distinctiveness are given greater weight.
You must apply for design registration before you sell or use your design – there is no grace period for filing in Australia.
The definition of a product is broad. It includes any manufactured or handmade product, for example mobile telephones, household appliances or shoes. It also includes products that are components of a larger product (such as the door of a washing machine or a car seat) so these may be protected independently and in addition to the complex product as a whole.
We can also focus protection on a part of a product by registering a design for the complex product as a whole and using a Statement of Newness and Distinctiveness to highlight the part of interest. So, a design for a refrigerator could be registered with a statement of newness and distinctiveness emphasising the importance of the door.