What is a design?

A design is the overall visual appearance of a product. The use of creative and innovative designs is an important part of the creation of a new product to the extent that the use of an eye-catching and visually appealing design can set goods apart from those of their competitors.

A reference to the ‘design’ of a product is generally a reference to the shape, pattern or ornamentation of the product which gives it a unique appearance. Examples of registered designs include furniture, clothing and homewares.

The Designs Act 2003 (Cth) provides that designs which are ‘new’ and ‘distinctive’ can be registered, giving the owner an enforceable right against any party who adopts the visual appearance of the registered design on their own goods.

To determine whether a design is ‘new’ it must be compared to designs already existing in the marketplace and in order for a design to be ‘distinctive’ it must be different from existing designs.

Why register a design?

Registration of a design confers certain rights to the owner, including:

·         The right to make or offer to make a product, in relation to which the design is registered, which embodies the design;

·         The right to import such a product into Australiafor sale, or for use for the purposes of any trade or business;

·         The right to use such a product in any way for the purposes of any trade or business;

·         The right to assign and sell the design to a third party;

·         The right to stop identical or substantially similar designs being used on goods in respect of which the design is registered; and

·         The right to prevent other persons from using a design that is identical or substantially similar to the overall impression of your design on or in relation to goods in respect of which the design is registered by initiating legal proceedings for infringement under the Act.

Our Services

·         Advice and searches on new designs to be registered

·         Preparation and filing of design applications

·         Advice on infringement of registered designs

·         Sale and assignment of registered designs

·         Licensing of registered designs

·         Advising on risk protection in relation to registered design rights

·         Dispute resolution relating to registered designs

Designs Publications

·         Case Study: DTA Australia Pty Ltd registered design enforcement action

Where to now?

If you have created a design which you believe is new and distinctive, you should seek legal advice before:

·         disclosing it; or

·         commercialising it.

If you do either of these things prior to applying to register the design, you might lose your right to registration.

Where to now?

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It gives you a chance to ask any questions you may have and for a member of our team to gain background and provide an insight into the options available to you.

For more information please call us on +61 3 9620 9660 or send us an e-mail at info@mdplaw.com.au. We are here to help.