It's important to manage your design so you can gain the most benefit from your intellectual property (IP) asset. This includes being aware of design legislation, your options when someone uses your design without your permission, amending your design in some instances and renewing your design.
When someone uses your design without permission - IP infringement
IP infringement is when someone else uses your IP without your permission.
If you feel your IP rights have been infringed you can only take legal action once your registered design has been examined and issued a certificate of examination.
However, it's important to note that if your registered design is examined and found invalid, your design registration will be ceased or revoked and you will not be able to take any action.
If you suspect your IP rights are being infringed, or you have been accused of infringing another person's IP rights, you may want to engage an IP professional.
The Designs Act 2003 allows you to dispute actions by others or by us.
You can use a hearing proceeding to dispute the entitlement an applicant has to a design. The hearing procedure for a design right is the same as the procedure for trade marks.
You may also request a hearing:
- to argue a case in relation to formalities or examination findings
- if you are responding to an examination notice near the end of the six month period and have concerns about the loss of your design rights if the examiner does not agree with your response.
This option is not often used but may help you in protecting your design. If you do request a hearing, fees apply. You could consult an IP professional if you are thinking about this option.
All decisions we make from hearings are available on the Australian Legal Information Institute website.
Either party may file an appeal against any decision issued by a delegate. An appeal is usually to the Federal Court of Australia.