Patents vs. Registered Designs: Which do you need?
You have made a new fashion accessory, or a new building tool, or a new children’s toy, or any other product with physical form. How do you protect it? How do you deter your competitors from copying it as soon as you start selling it? In most cases, the most appropriate options would be a patent or a registered design. Perhaps both. Let’s compare these two kinds of intellectual property rights and see which may be right for you.
What is protected
A registered design protects a product’s look, including its shape, colours, and any pattern or ornamentation of the product. On the other hand, internal elements of the product that would not be visible during normal use, or the way in which the product operates, are not protected by a registered design as they do not form part of the product’s appearance.
Registered designs are effective for protecting against competing products that copy an original product without substantially altering its appearance. However, competing products with a different appearance might not infringe a registered design, even if they have exactly the same function as the original product. For dealing with such cases, a patent would be more effective.
Patents, unlike registered designs, are not limited to protecting a product’s appearance. They can additionally protect the product’s operation, its materials, the way it is made, and the way it is used. Patent protection is therefore often broader than that of a registered design. That broader protection, however, comes at a cost, as explained below.
To obtain either a patent and or a registered design, the product must be an element of originality. For a registered design in Australia, the product’s appearance must be new and distinctive over existing designs. For a patent, the product must be novel and inventive over previously published information. The assessment of these criteria is complicated, depending on many factors, but, in general, the bar for a obtaining a patent is higher than for a registered design.
Duration of Protection
Designs registered in Australia have up to 10 years of protection from the date of initial filing. Other countries may provide longer terms of protection—for example, designs in the US and New Zealand can be protected for up to 15 years, and in Europe for up to 25 years.
Patents, in most countries, provide up to 20 years of protection, with a possible 5-year extension under certain circumstances for patents protecting pharmaceutical substances.
What Are the Requirements for each form of protection?
Both types of protection require originality, but the standards differ.
| Feature | Registered Design | Patent |
| Threshold | New and distinctive | Novel and inventive |
| Prior Art | Existing designs | Existing public knowledge |
| Assessment Process | Formalities until examined | Substantive examination required |
In general, the bar for a patent is higher, particularly when it comes to the “inventive step” requirement, which means your idea must not be an obvious variation of existing technologies.
Application Process
The process for obtaining patents and registered designs are similar. After submitting the application at IP Australia, the application is published and examined. One key difference, however, is that examination of a registered design can be deferred indefinitely.
Examination of a design application is not necessary for registration of the design—the design is normally registered within a couple of months after submission of the application (following a formalities check to ensure that the application complies with some basic requirements). Examination becomes necessary if the registered design is to be legally enforced, such as when a competing product that infringes the design appears on the market.
The ability to defer, and potentially avoid, examination of a registered design makes registered designs significantly less expensive, on average, than patents, for which examination is compulsory. That said, Australia is somewhat unique in allowing deferral of examination—other countries, including New Zealand and the US, generally mandate examination for all designs.
How to choose
Before you decide on either patent protection or design registration, you need to know what is unique about your product? What makes it superior to alternative products? If its uniqueness is attributable to a visible feature of the product, you should consider design protection. Alternatively, if it is due to a non-visible feature of the product (e.g. a specific material, or an interaction between components), you should consider patent protection. If both visible and non-visible features of the product contribute to its uniqueness, both designs and patents may be advisable, to obtain the most comprehensive protection possible.
Strategic Tip: Think About Your Market and Budget
- For fast-moving industries like fashion or consumer goods, a design registration may be the most cost-effective way to deter knockoffs.
- For tech-driven or high-investment products, a patent provides longer and more robust protection.
- Your enforcement strategy and target markets (Australia only vs. global reach) may also influence which right is more worthwhile.
Conclusion: Talk to an Expert
Choosing between a patent and a registered design—or deciding whether you need both—depends on your product, your goals, and your budget. A registered design might be all you need to protect your brand’s distinctive look. Or you may need the powerful protection of a patent to stop competitors from copying how your product works.
The good news? A patent attorney can assist you to make the right decision. If you have any questions or require any further information about designs or patents, please feel free to contact one of our patent attorneys.