What is a registered design?
The Australian Designs Act defines a design, in relation to a product, as the overall appearance of the product resulting from one or more visual features of the product. Visual features include shape, configuration, pattern or ornamentation of the product.
A registered design can be useful against the copying of products that embody a valuable shape
What are the requirements for a design to be registered?
In Australia, a design must be "new" and "distinctive" in order for it to be registrable.
A design is said to be "new" if it has never before been known or previously been used in Australia, or anywhere else in the world, in respect of any article. The test relates to the appearance of the design. Consequently, if an alleged copy has one visual feature that is not present in the design, then the design will be new in relation to that alleged copy.
Whether or not a design is "distinctive" is a more complex test. A design is said to be distinctive unless it is substantially similar in overall impression to a design that forms part of the prior art base for the design. The assessment is to be made from the informed user's point of view. An informed user is regarded as a nominal Australian person who is familiar with the product to which the design relates. The Act requires the person making the decision as to distinctiveness to give more more weight to similarities between competing products than to differences. This is just a very simplified description of the test. Please contact me if you need more information.
The procedure for filing an application to register a design is relatively simple. See the flowchart for more information.
There is no grace period if the design is not new
Unlike patents, there is no grace period for registered designs. Thus, if there has been any non-confidential disclosure of the design, then it may no longer be possible to obtain valid design registration.