Designs for fashion
A design is the visual appearance of a product and if it the design is unique it can be registered. In the fashion industry a design could be a skirt with ruffles, the particular cut of a jacket or the decorative pattern on a shirt.
Registration of a design gives the designer protection for the visual appearance of their product but not the product's feel or function.
If the feel or function of bed linen could be registered as a design, it would mean that one designer would have a monopoly on the market and no-one else would be able to design or manufacture bed linen.
New and distinctive designs
A design must be new and distinctive in order for it to be registered. This means it can not be the same or similar to a design that has already been produced - even if the design is a sketch. There are certain designs that can not be registered such as designs featuring scandalous graphics.
Examples of products that have been found to be new and distinctive are Crocs footwear, swimwear by JETS and garments by Review Australia.
Before filing a design application you should research existing design records to make sure your design is unique. Copying a registered design can have serious consequences and legal action may be taken against you if you are found to have infringed another designer's rights.
A registered design that has been examined and certified gives you a legally enforceable right to prevent other people from using your design without your permission.
IP professionals may be able to provide you with specific advice and assistance about the design registration process.
A warning about early disclosure
If you have already disclosed your design you may not be able to register it as it may no longer be considered new and distinctive. Disclosure of your design may occur when you display it at a trade show, include it in a book, sell it or display it on your website.
If you can not register your design you are able to use an alternative option called 'publication'. Publication does not give you any enforceable design rights but it does prevent others from obtaining registration for the same design. You will need to make a formal request for publication and pay the applicable fee.
Last Updated: 10/12/2012