Protecting Your Designs - Frequently Asked Questions

What is an industrial design?
An industrial design relates to the overall appearance and visual features of a product. These visual features can include the shape, pattern, configuration and ornamentation of a design, all of which are features that ultimately make a design unique. It is important to note that a design only relates to the visual features of a product, and does not pertain to the function of a product and how it works.

Why protect an industrial design?
Securing a certified design registration will afford you the exclusive right to use your design as it is specified on your registration, and it will also prevent others from registering a similar design. If another party infringes your certified registered design, you will also be able to take steps to enforce your certification rights and stop their use of your design. Gaining certification for your registered design not only adds value to your business or company by providing you with design protection, but also serves as a tangible registered asset that can be sold, licensed or assigned to other parties.

What constitutes a registerable industrial design?
In order for a registered design to be certified, the design must be both new and distinctive. The newness of a design is determined by whether it has been publicly used in Australia or published both nationally and internationally. The distinctiveness of a design is based on whether the design is similar in appearance to any other designs that currently exist within the public domain, not just on the Australian Designs Database.

How do I find out whether my industrial design is new and distinctive?
IP Wealth offers professional design search services that can ascertain whether your design is new and distinctive and also whether it has already been registered by another party. It is particularly important to establish whether your design has already been registered and/or certified by someone else, as the use or intended use of your design could constitute infringement of someone else's registered or certified design asset.

When is the best time to file an industrial design application?
As design applications are required to be new, we recommend filing your application as close to the date of creation of your design as possible. This also means that you cannot sell, advertise or publicise your design in any form prior to filing your application.

How does the industrial design process work?
Once a design has been filed with the Designs Office, the applicant has a six month time period in which they must request either the "publication or "registration" of their application. If publication is chosen, the design application will be made publicly available by being published in the Australian Official Journal of Designs and in the Australian designs database. If registration is chosen, the design will be afforded registration by the Design Office. Once registered, you then have the option of requesting the examination of your application, and if your registration is found to be valid, your registered design will certified by the Designs Office.

What is the difference between a published, registered and certified registered industrial design?
Publication of a design does not afford the owner of the design any registered rights to sell, license or treat the design as a commercial asset. However the benefit of publishing a design is that by making it publicly available others will be prevented from attempting to register the design as it will no longer be new and distinctive. Requesting design registration is also viewed by some as a cost effective option for design protection as the applicant can request examination for certification at any time should their application be challenged or their design infringed. Certification of a registered design affords the applicant the registered right to use, sell or license the design, and also the registered right to bring proceedings against anyone that infringes their design.

How long does industrial design registration and certification last for?
Design registration and certification lasts for a five year period with the possibility of renewing the registration or certification for a further five years after that. This means that you can retain the exclusive and enforceable registered right to your design for a maximum period of ten years.