About IP

A design may be registered if it is new and distinctive.

A design is ‘new’ if it is not identical to a design publicly used in Australia or published in a document anywhere in the world before the filing date of the design application. However, in certain circumstances where copyright subsists, publication of a design in a document may not prevent a design from being considered new.

A design is ‘distinctive’ if it is not substantially similar in overall impression to another design publicly used in Australia or published in a document anywhere in the world.

Some designs cannot be registered. These include designs for medals, designs including the word “ANZAC”, designs including the Arms, or a flag or seal of the Commonwealth or of a State or Territory or designs that are scandalous.

It is important that as soon as a commercially viable design is created, a decision be made on applying for registration. Although confidential disclosure of the design does not destroy its newness or originality, there is the risk of the disclosure being misused by others. Also, the filing of a design application establishes a priority date for any potential rights in the design. The priority date is important because it is the date on which ‘newness’ and ‘distinctiveness’ of the design is assessed.

A design application can be filed containing one design, a single design in relation to many products, or multiple designs for multiple products provided all the designs fall within the same official class of product.