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How do you protect Commercial Designs

Legal documents for start-up - Chamberlains Law Firm, Canberra

When it comes to protecting intellectual property, and especially protecting intellectual property by registration most people automatically think about patents (devices, substances, method or processes) and trademarks (identification marks for your business, goods, or services).

But what about designs that you intend to commercially produce?

While artistic or literary work may be protected by the Copyright Act 1968 (Cth), there is no formal registration process for works that are subject to copyright. Further, due to the definition of what is protected by copyright, a design that is intended to be produced commercially may not enjoy the protections under the Copyright Act.

That is where the Design Act 2003 (Cth) applies.

The Design Act provides for registration of designs, and gives the owner of a validly registered design the exclusive right to make, import and trade products incorporating that design.

Registration of a design is unrelated to the function of the product it is to be incorporated in (although, it may affect the function as well), and is only concerned with whether the design’s overall appearance from its shape, configuration, pattern or ornamentation is new and distinctive.

It is important to note, however, that:

  • It is only strictly the visual appearance of the design that is relevant, not the materials it is made out of, or the ‘feel’ of a product; and
  • if a design is registered under the Design Act (which lasts for, generally, five years and any renewals), to the extent that it was previously protected by copyright, it may lose some or all that protection.

As such if you are looking to protect any of your intellectual property, especially any designs you wish to commercially exploit, or which you believe may be covered by both the Copyright and Design Acts, you should seek legal advice.

If you require guidance or advice regarding intellectual property issues, please call our Advisory team on (02) 6215 9200, or email Mark North mark.north@chamberlains.com.au.

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