Design protection: A powerful complement to patent rights
Key points
- The visual appearance of a physical product can be protected via a registered design right.
- Securing strong design rights can be very simple and cost-effective.
- Keep your product confidential until you have applied for design protection.
When appearance is everything
Registered designs are a powerful intellectual property right that many Australian businesses are not even aware of. And yet, when businesses seek to ‘patent’ their products, often it is registered design protection that would most effectively safeguard their product innovations.
Registered designs protect the overall visual appearance of a product. This can be a combination of visual features, including:
- shape
- pattern
- ornamentation
- colour
- configuration.
Maintain distinctiveness by registering your design
The above visual representations are from design rights for products you probably recognise. As you would appreciate, these products have a distinctive aesthetic appearance that sets them apart in a crowded marketplace. Having a strong sense of design bolstered by a robust design protection strategy has been key to ensuring competitors cannot copy the look of these eye-catching products.
How to register your design
Applying for design protection is relatively straightforward, and involves filing visual representations (e.g., drawings or photos) depicting your physical product.
Since design protection is all about how your product looks, it is crucial that your visual representations maximise your scope of protection. For example, black and white line drawings of the product are typically submitted without any labelling or dimensions.
Visual features that are optional or variable can be represented in dashed lines, and an accompanying Statement of Newness and Distinctiveness can be submitted to emphasise or understate certain visual features. For example, if you have created a new bottle lid, you may wish to show the bottle lid in solid lines, whereas the body of the bottle can be shown in dashed lines.
Drawing conventions can also be used to show that a product varies in certain dimensions. For example, if you have created a roof gutter, it may be that it is the cross-sectional shape that you wish to protect, and thus you would want to ensure that your drawings cover roof gutters of any length.
A registered patent attorney, particularly one with an engineering background, can advise on how to best prepare your design application drawings.
When to apply for design protection
To secure a design right, your design needs to be new compared with all that is the public domain. As such, you should avoid publicly disclosing your design before filing for protection.
While jurisdictions such as the US, and more recently, Australia, have grace periods that can protect applicants against their prior disclosures, these grace periods are only available under certain conditions and in a limited number of countries.
It is also important to ensure that the look of your product is more-or-less finalised when you file for design protection. The scope of your design right is based on the visual representations you submit. If the look of your product ends up deviating from the drawings you filed, it may that your design right ultimately does not adequately protect your end product.
For more information on registered design protection, check out this post where we answer common questions about design protection.
