What do Hermès Birkinbag and the world’s first barista standard reusable cup KeepCup have in common? Well, their unique appearance may be protected under the Designs Act 2003 (Cth).
Designs are those features of shape, configuration, pattern or ornamentation which create the visual appearance of an article. If your products have a unique appearance, it is recommended that you consider design registration.
Design is not merely an expression of your creativity. It is also an integral part of your brand and impacts on the appeal of products to consumers, your ability to sell your product and develop a sustainable business. Unfortunately for some designers and business, taking steps to protect your design happens too late as it needs to be done before the product is launched to market or shown publicly.
A key aspect of protecting the design of an article is protecting your intellectual property. After all, it is your talent and innovation and you deserve to be reward for the “sweat of your brow”.
Designs may be protected by two systems of intellectual property law under the:
the Copyright Act 1968 (Cth);
the Design Act 2003 (Cth);
Consumer laws (under the broad area of misleading or deceptive conduct).
Design law protects the look of the object, not how it works
Protecting your designs under copyright law does not require registration and is immediate however this has its limitations – for example, for copyright to exist, the object cannot be mass-manufactured
Most industrial designs are excluded from protection under Australia’s copyright laws
Protection under the Designs Act 2003 requires formal registration
Design registration lasts for up to 10 years and requires payment of a fee
For a design to be enforceable, it must be new and distinctive
Australian Design registration only protects the design with Australia.
International design registration requires registration in that country.
The way a design registration is file is critical to the scope of protection – if it is filed incorrectly you may not be protected at all.
People can search the Australian Designs Register and this can help deter copying.
Many businesses may not realise that mass-manufacture of goods such as items of furniture, car parts, garments or innovative products with a distinctive appearance all involve elements of design. Protecting your design legally ensures that inferior copies or competitor’s products do not free ride from your hard work and reputation.
Our recent cases include advising on a matter in relation to a rip-off design of a nappy and design registrations for a packaging company.
For articles and posts written by Sharon Givoni, click here.