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Australian design registrations

Coverage, novelty requirements and grace periods

See also:

-> Design registration for Australians

-> Australian design registrations - convention deadlines, filing requirements and registration procedures

 

Design registrations are Australia's equivalent of design patents available elsewhere. They provide monopoly rights in the overall visual impression of new and distinctive products.

Coverage defined without patent claims

A design is registered in respect of a product and covers products which are 'substantially similar in overall [visual] impression' to the registered design. 'Substantial similarity' must be assessed from the point of view of an informed user of that product. Thus, the scope of protection can be influenced by carefully defining the product at filing.

At filing a Statement of Newness and Distinctiveness (SOND) may be included. The SOND serves to identify features or portions of the design to which particular regard should be given when assessing the overall visual impression. Typically the novel features or portions of the design should be identified in the SOND.

Relative novelty

Aside from the exceptions enshrined in the Paris Convention, registrability is assessed against earlier:

(a)  designs publicly used in Australia; and

(b)  designs published in a document within or outside Australia; and

(c)  designs in relation to which each of the following criteria is satisfied:

(i)  the design is disclosed in a design application,

(ii)  the design has an earlier priority date than the designated design,

(iii)  the first time documents disclosing the design are made available for public inspection under section 60 is on or after the priority date of the designated design.

Only a very limited grace period

There is no effective grace period aside from a complex provision of limited application (Section 18 of the Designs Act 2003), which provision may excuse public pre-priority date uses of an artistic work in which copyright subsists if those uses are non-commercial and/or unauthorised.

 

See also:

-> Australian design registrations - convention deadlines, filing requirements and registration procedures

 

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