Registered designs, known as “Design Patents” in the United States, can be used to protect the appearance of a product if the appearance is unique. Such protection will protect your design against any other designs which are being used commercially and are substantially similar in overall impression to your design.
Why not use copyright or a patent?
A registered design (or design patent) does not provide protection for the functionality of a product and if functional protection is required, this can only be achieved using the utility patent process. Conversely, a utility patent cannot protect the non-functional appearance of a product; this can only be achieved using the registered design process. You can have both a registered design and patent protection for the same product to protect all aspects of your design (i.e. both the appearance and functionality).
Copyright covers all 2-dimensional artistic works and some 3-dimensional artistic works. However, when 3-dimensional artistic works are used commercially (e.g. mass produced) they automatically lose copyright protection. In order to effectively prosecute a party who is using your commercial design, you need a registered design.
Can I get a registered design on my product?
Yes – If your design is new and distinctive when compared with the prior art. The prior art includes designs publicly used in Australia, designs published in Australia or overseas and designs disclosed in earlier registrations.
There are a number of important strategies that can be adopted to maximise the scope and strength of your design application and our experienced team can lead you through the registered design process to help you achieve a solid design registration.
If your product has a unique and marketable appearance, please call us on (02) 9264 6716 so that we can help you protect it.
A registered design application undergoes a formalities examination then proceeds to grant. Substantive examination is part of an optional, post-grant certification procedure that can be requested at any time during the life of the registered design. A registered design must be certified before an infringement action may be commenced. A third party can request certification of a registered design but must share the associated government fees if it does.
The initial period of registration lasts five years from the filing date and can be extended once to a maximum term of ten years.