Design law protects the appearance of commercially produced products. The Designs Act 1906 (Cth) establishes a system for registration of new or original designs for use in relation to mass-produced articles. Registration gives the owner the exclusive right to apply the design for which it is registered. A design may include the shape of an article or the pattern or ornamentation applied to an article. To qualify for registration a design must be new or original, but need not be both. A design is new or original if it has not been previously registered, published or used. The date for assessing whether a design is new or original is the date on which the application for registration is lodged. Design registration lasts for a maximum of 16 years from the date the application is lodged, made up of an initial term of 12 months, followed by three five-year extensions. Renewals are the responsibility of the design owner as the Designs Office does not send renewal notices. A design is registered in relation to a particular article or set of articles, for example, a dinner service.
Overlap between Copyright and Designs
Copyright and designs are separate systems but there is the potential for overlap between them. Design art which is protected as an artistic work under the Copyright Act may also qualify for protection under the Designs Act 1906.
The Copyright Act contains provisions that deal with artistic works which are also eligible for registration under the Designs Act. The intention of these provisions is to maintain copyright protection for artistic uses of designs while removing copyright protection for industrial uses of designs for three dimensional articles, which should be registered under the Designs Act. Copyright protection is lost once the design is industrially applied and the articles produced are marketed. ‘Industrially applied’ means manufacturing in commercial quantities.
Two dimensional designs, ‘flat’ designs, applied to the surface of an article can be protected under both the Copyright Act and the Designs Act.
Three dimensional craft works which are mass produced continue to be protected by copyright provided that each article can be classed as a ‘work of artistic craftsmanship’. This category includes such works as woodcarvings, pottery, jewellery, basket weaving, enamelling, knitting work and so on. Design registration is available for these works but once registered, copyright protection will be lost.