Designs relate to the visual features of products. Visual features include shape, configuration, pattern and ornamentation applied to the surface, but not the feel of a product.
To be registrable in Australia a design must be new and distinctive. A design is not new and distinctive if it has been publicly used in Australia or published in a document anywhere in the world.
In some circumstances a design is still considered to be new and distinctive even if disclosed as above, but only if there has been no or extremely limited commercial use of the design.
A design application is only examined for formalities. No examination as to whether it is new and distinctive occurs before registration.
A design may be merely published or it may be registered. A design that has been published but not registered provides no rights to the owner but does serve as a defensive publication to prevent others obtaining registration of the design. For each design disclosed in an application, a request for publication or registration must be filed within 6 months of the priority date, otherwise the application lapses.
For each design that is registered a fee must be paid, either at filing or before registration. No fee is payable for a design that is merely published but not registered.
A design is registered without substantive examination. It is not possible to take or threaten court action until the Registration has been examined and "certified" by the Designs Office. Until a design registration is certified one can only advise third parties of its existence. Examination may be requested at any time by the registrant or by a third party. If objections are raised during examination and cannot be overcome the design registration is revoked.
Although court action cannot be taken until a design registration is certified, a claim for damages or an account of profit may be made from the date of infringement, which may be before the date of certification.
The maximum life of an Australian design registration is 10 years from the filing date, subject to payment of a single renewal fee. The fee is due 5 years from the application date.
If the renewal fee is not paid then the registration will lapse. The renewal fee may be paid up to 6 months late but with additional fees. After 6 months restoration is possible, but not if the owner had merely changed its mind.
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Designs