related
Guide:

Intellectual
Property

related
Profiles:

Trademarks

Patents

Copyright
cases

IP chronology
 

     overview

This note supplements the Intellectual Property Guide elsewhere on this site. It is concerned with the legal protection of designs of manufactured items outside copyright.

It covers -

• global - global frameworks for designs protection
• Australia - the shape of the Australian regime, centred on the Designs Act 2003
• searches - the designs registration process and searching the Australian and other databases for registered designs
• cases - leading Australian cases

It is unrelated to the exploration of web design (including questions of standards, cross-cultural communication as usability) elsewhere on this site.

     orientation

In Australia two- and three-dimensional designs (eg a textile pattern or the shape of a manufactured item such as a jug) can gain monopoly protection under industrial property law. That law reflects global frameworks and is broadly consistent with that in comparable jurisdictions such as Canada, the US, New Zealand and UK.

The protection is concerned with the overall appearance of a manufactured product. Visual features that form the design - and give the product a unique appearance - may include shape, configuration, pattern and ornamentation. The protection is of the product's appearance, not its function or the process through which it works (which might for example be protected through a patent).

Protection is dependent on registration, ie recognition in an official register that is typically maintained by a nation's intellectual property office (eg AIPO in Australia and the USPTO in the USA). A design must be 'new' and 'distinctive' to be registrable. As discussed later in this note, new essentially means that an identical design (or one very similar) has not been publicly used in the particular jurisdiction for which registration is sought and has not been published. A design is 'distinctive' unless it is substantially similar in overall appearance to other designs already in the public domain.

The requirement for registration differs from protection under copyright law, where protection generally is automatic from the moment of 'fixation', without any need for notification to a government agency or inclusion in an official register.

Registration provides the owner of the design with exclusive (ie monopoly) rights regarding the design for the period of protection. That period is short term and for a flat number of years, in contrast to the period of protection provided by copyright law (typically for the author's life plus 50 or 70 years).

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