Breaking down barriers to innovation: understanding Australian industrial design (I)

For enterprises, especially innovative enterprises, it is crucial to ensure that product designs are properly protected by intellectual property rights. Consolidating the market position of products through legal means and preventing plagiarism and infringement paves the way for the long-term development of enterprises. Therefore, enterprises should attach importance to the application and management of design rights during the research and development stage. In addition, the combination of patent and trademark applications can form a comprehensive intellectual property moat, bringing greater competitive advantages and economic benefits to enterprises.

What is design right?

• A design right is a form of registrable intellectual property that protects the appearance of a product that is new and distinctive. The overall appearance of a product can be a combination of visual features, including shape, color, construction, pattern and ornamentation. Design rights are intended to protect the visual appearance of an entire product that has a physical form, is manufactured or handcrafted, and is produced on a commercial scale.

Duration of design protection in Australia

• In Australia, the initial protection period for design rights is 5 years from the filing date. This can be renewed for a further 5 years, for a maximum period of 10 years. However, if a certification is applied for and the design is found not to be new or distinctive, the design patent rights may be revoked or terminated. In order to enforce the design rights, the certification process must be completed.

Why should I apply for a design? What are the benefits of applying for a design and having it certified?

• Exclusive right to use the design in Australia
• The right to authorize others to use the design in Australia
• This design right can be sold or licensed and has economic value
• You can apply for the same design rights overseas within 6 months of filing your Australian application
• The right to take legal action against anyone who uses your designs without permission

What is protectable as a design?

• Design rights protect the visual appearance of an entire product that has physical form, is manufactured or handcrafted, and is produced on a commercial scale.

What are the things that are not protectable as industrial designs in Australia?

• idea, concept or process
• Intangible content, such as computer graphics
• How a product works or how it is made
• Non-visual features
• Non-manufactured or handmade items, such as people, animals, plants
• Brand name or logo
• The part of the product that cannot be manufactured independently
• Visual appearance changes over time
• Legally, the following items cannot be protected by design rights:
  • Indecent design
  • medal
  • Specific national emblems, flags, badges
  • Banknotes
  • Integrated Circuit Layout
  • Designs prohibited under the Olympic Symbols Protection Act 1987
  • Use of the word 'ANZAC' in the design unless permission is obtained from the Department of Veterans Affairs