Design is defined as the shape and configuration of a product and/or the pattern or ornamentation appearing on it. Designs can be protected as a registered design under the provisions of the Designs Act 2003. In Australia, protection can be gained for designs which have aesthetic appeal and/or which are merely functional.
The person who applies for registration of a design must be the designer/author of the design, or the person who has received the rights in the design from the designer. If a designer has produced the design while employed, and as part of the designer's obligations to the employer, then the employer is the person who is entitled to apply for design registration.
A design application must be filed before the design is made known to anyone on a non-confidential basis, which includes any form of commercial dealing. Once the design has been disclosed in a non-confidential manner, valid design protection is (in most cases) no longer available. Once a design application has been filed you may commence selling products bearing the design.
In addition, a request for registration or publication must be filed before the expiry of six months from the earlier of the earliest priority date or the filing date of the design application.
After the request for registration is lodged, the design will proceed to registration. However, the registration cannot be enforced until it has been examined and certified.
The registered design has an initial term of five years, extendable on application for a further five year term.
Examination takes place upon application by the owner or other party. If there are no objections the registration will be certified. If there are objections they will need to be overcome before the registration can be certified. Objections may be of a merely formal nature or may challenge the registrability of the design, and/or its newness and distinctiveness.
Design applications and registrations proceeding under the old law (Designs Act 1906) will, upon registration, have an initial term of one year from registration, but can be extended for further terms of up to 16 years from the application date. (One term of six years and two further five year terms, reckoned from the application date.)
It should be noted that copyright does not provide the monopoly protection of a registered design but merely protects against copying of literary and artistic works such as drawings. In addition copyright does not protect the design of three dimensional industrialised designs (ie. the shape of manufactured items where the design is reproduced several times).
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