The process of applying for a design right
Australia has a 2 -step process for securing design right protection: registration and certification.
Both steps are necessary to legally enforce your design right. This means that you can take action to stop others from using it without your permission.
Step 1: Registration
Unlike other IP rights, a registered design is not an enforceable right. This means that at this step you do not have the legal right to take action against others using it. Learn more about the difference between registration and certification.
This is the process for gaining registration:
You file a design right application and pay the associated fees.
We check that the application has the information required. At this stage we will give you a design right number.
We publish some of the details of your application on Australian Design Search. These details include the names of the owner and/or the designer. At this stage, however, we do not publish what it looks like.
Your application will automatically proceed to a formalities check 6 months after the priority date of the application. If you want to register your design earlier, you can to file a request to do so. You can request registration at the same time as you file your application.
We check to make sure your application meets the legislative requirements for registration. We call this the 'formalities assessment'. This usually happens within 8 weeks. We will let you know in writing if your application doesn’t meet the requirements. Generally, issues raised at this stage are easy to overcome. You may have to provide new or clarify existing information
If there are any issues raised, you have 2 months to resolve them. If you can’t overcome the issues within this time, your design application will lapse.
If there are no issues (or you have overcome the issues raised in the 2 -month period) we will register your design. We will issue a Certificate of Registration to verify this. This registration lasts for 5 years.
We publish more details of your application on Australian Design Search. These details include the images you provided in your application.
You can choose to renew your application for another 5 years. This will give you a total of 10 years of registration. If you don’t renew, your application will cease after 5 years.
Step 2: Certification
Having your registered design examined is optional. If your registered design passes this examination, we will then certify the registration. Certifying your registered design gives you the legal right to enforce your design. This means you can take action against others using it without your permission. Learn more about the benefits of having your registered design certified.
This is the process for having your design certified:
After you have registered your design, you (or another person) can request examination. This can be done when you file or at any time after your file your design application. This process has associated fees.
We examine your registered design to see if it if meets the legal test for certification. During examination we search the world for identical and similar designs. If we find your design or one too similar it can prevent your design from being certified. We aim to do this within 13 weeks. We will let you know in writing if your design doesn’t meet the requirements.
If there are any issues raised, you have 6 months to resolve them. If you can’t overcome the issues raised at this stage the registration granted in step 1 will cease.
If there are no issues (or you have overcome the issues raised) we will certify your registered design. We will issue a Certificate of Examination to verify this.
Examination requests from a third party
Someone else (such as a competitor) can request examination of a registered design. They might do this if they want to test the validity of the design registration. If this happens, that person will have to pay half the examination fee and the owner will need to pay the balance. If the owner does not pay the balance, the design registration will cease.