When you develop a new and innovative product, the Australian intellectual property law gives you the opportunity to register it in order to make a profit off of it for a certain amount of time. Let's explore how design protection works and how long it lasts.
What is a registered design?
Though the word "design" connotes something pretty general, when it comes to intellectual property, it has a very specific meaning. It is what makes a product look the way it does. This can include shape, configuration, pattern, and ornamentation that, when applied to a product, gives it a unique appearance.
It's important to note that the art itself does not need design protection – this would fall under copyright – but if artwork is applied to a product to make it unique looking, it would. Design protection will provide you exclusive rights to use it commercially. You also have the option to license or sell the design.
The process of registering a design can be on the lengthy side. After you've gathered everything you need to apply, it can take as long as three months for the government to process the application. You'll also need to be prepared to pay between $250 and $350 upfront.
After you have filed your design, you may make some limited changes under Australian law, including changes in ownership or address, or to remedy problems or errors in the application.
How long does design protection last?
Design patent protection varies from one place to another. For instance:
- USA design patents lasts up to 20 years with no renewals.
- New Zealand designs lasts up to 15 years with renewals every 5 years.
- European designs last up to 25 years with renewals every 5 years.
- Chinese Designs lasts up to 20 years with renewals every year after registration.
Once your application for design protection is approved in New Zealand, your IP will be protected for five years from the date that you initially filed. After this time, you have the option to renew protection for five more years. Because you only have the option to renew your design protection once, the longest you can have your design registered is 10 years.
During this time, you have the following rights:
- Sell your design
- Mark your product and its packaging as a registered design
- Obtain a court order – also known as an injunction – if a competitor is infringing on your registered design
- License out your design to another person in Australia or around the world to use your design in return for license fees, royalties, or another form of payment
- Give your design in your will upon your passing
It's important to note that during these 10 years, your design is only registered in Australia. Because there is no international design protection, your protections do not extend beyond the country. However, you also have the option to register your design in other countries.
You can either file a separate application for each country you plan on pursuing your design on your own, or you can fold it in with your Australian application. Within six months of your Australian application, you can file an application in countries that you select and nominate the date of your Australian application as the priority date for all foreign applications.
If you do the latter, any public use or disclosure after the date of your application will be disregarded to determine the eligibility of your foreign applications.
Once the 10 year period of design registration ends – or if you fail to renew your registration after five years – your design protection will cease. This means that, while you can still use your design commercially, you no longer have sole ownership of it. Your competitors can freely use your design for their own products if they desire.
To ensure you get the most out of your design, consider using a patent attorney in Australia.