A registered design protects the appearance, rather than the function of an article or the method of constructing an article.
In Australia copyright subsists automatically upon creation of an original work. However, if the author of a design for a three-dimensional article wishes to protect it, then an application for registration must be made with the Designs Office of IP Australia.
A design may be registered if its appearance (shape, configuration,
pattern and/or ornamentation) is new and distinctive compared
to that published anywhere in the world or prior used or subject
of an earlier application in Australia. Thus, the appearance
of an article may sometimes be able to be protected by a registered
design even if its structure or function cannot be protected
by patent. In other instances, an invention may be covered
by both patent and design protection.
A design application must include representations (photos
and/or drawings) showing the design to be protected.
The design application should be filed before any non-confidential
disclosure, except in some limited circumstances where there
is copyright in the design and the disclosure falls short
of "industrial application" of the design.
The period for filing foreign design applications claiming
the priority of the first application is 6 months.
The maximum term of a registered design in Australia is 16
years for applications filed before 17 June 2004, or 10 years
for designs filed under the current Designs Act which came into
force on 17 June 2004. Applications filed under the old provisions
were examined before registration, while under the new provisions
an application is examined only for formalities and must be
examined before the rights can be enforced". Fora summary of the current Designs Act provisions, click here.
Some designs may be registered as trade
marks, where the article's appearance functions to indicate
the trade source of goods, e.g. the shape of the Caramello
Koala chocolate bar. See our discussion on trade mark.