Before you can enforce your registered design right, it needs to be certified. A registered design can only be certified if it is 'new' and 'distinctive' when compared to any other design that forms part of the 'prior art base'.
- 'New' means your design is not identical to an earlier design published worldwide.
- 'Distinctive' means your design is visually unique compared to other designs published worldwide.
- 'Prior art base' means designs that have been shared publicly anywhere in the world.
This means your registered design cannot be certified if:
- you made your own design public before applying
- someone has already published a design that is too similar to yours.
Don’t go public too soon
You need to keep your design secret before you apply if you want to be able to protect it with a design right. If your design is already visible to the public, even if you published it yourself, it is no longer ‘new’.
If you need to talk to others about your idea, you need be sure that they won't disclose your idea to anyone else. You can use a non-disclosure agreement to formalise this. Learn more about non-disclosure agreements.
After 10 March 2022, the designs system will change to include a grace period. This means that even if you have published or publicly used your design up to 12 months before applying to protect your design, you may still be eligible for protection.
The date you submit your design right application establishes what is known as a priority date. Potential competitors who submit an application at a later date for the same or similar design will not be entitled to certify it due to your earlier priority date. In certain circumstances the priority date of an application can be earlier than the application date if they have applied for the same design in another country. Learn more about international designs.
Do your research
Before applying for a design right, you should try searching for any designs that may be similar to yours. Searching can give you an idea of how your design compares to other designs. It will also help you check if your own design has been published.
Your searching may include:
- the internet, including social media
- dedicated intellectual property (IP) search databases, both in Australia and overseas.
As part of the certification process, we will also perform extensive searches. If we find your design or a design too similar to yours, we will let you know in writing.
Internet and social media
Consider searching a variety of places for designs that could be relevant, including:
- common search engines (e.g. Google)
- social media platforms (e.g. Facebook, Twitter and Instagram)
- video sharing websites (e.g. YouTube)
- platforms where products are commonly bought or sold (e.g. Amazon, eBay, Alibaba)
- industry publications, where relevant.
Some tips on searching the internet and social media include:
- search as though you were looking to buy your product
- search for potential competitors
- get creative with the words you search for - there are often many ways to describe the same product
- know your industry. Different industries tend to have different ways of publicising and promoting their design.
IP search databases
IP search databases are online resources you can use to find details about IP rights filed by others. Any images published on these databases could be relevant, even if they are not registered as a design right.
IP search databases in Australia include:
- Australian Design Search: this database contains details for designs applications and registrations
- Australian Trade Mark Search: this database contains details for trade mark applications
- AusPat: this database contains details for patent applications.
International IP search databases include:
- Global Design Database
- European Union Intellectual Property Office (Design View)
- United States Patent and Trademark Office.
Seeking a search professional
Conducting your own research will give you a great idea of what designs already exist. However, searching and interpreting prior art is a specialised skill. It can be time consuming and complex.
There are IP professionals who can provide advice or conduct prior art searches for you. Learn more about IP professionals.