Australia has a 2 step process for securing design right protection: registration and certification.
Both steps are necessary to enforce your design right and stop others from using your design or a very similar design, without your permission. It is important to understand the 2 steps before you apply.
Fees are payable at each step. Learn more about fees.
This page highlights the benefits of and differences between the 2 steps.
The first step is 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. You must request registration within 6 months of applying for your design right.
Registration will give you:
- the exclusive right to use your design within Australia
- the exclusive right to authorise other people to use your design within Australia
- a right that can grow in value and can be sold or licensed within Australia
- the ability to apply for the same design overseas (within 6 months of your Australian application)
- the ability to request the second step in the process: certification.
Registration does not give you an enforceable right.
When we receive your request, we check your application against the legislative requirements. At this step we do not check if your design is similar to other designs. Many registered design owners choose not to protect their design beyond registration. However, if you need to enforce your design right, you need to progress to step 2 and request certification.
The second step is certification
After you have registered your design, you (or another person) can request for us to examine it. If your registered design passes this examination, we will then certify the registration.
Certification is optional and is only possible after your design has been registered (step one).
Certification will give you:
- a continuation of all the rights granted at registration
- the legal right to enforce your design and take action against others using it.
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. In legal terms, a 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.
If your design is not new or distinctive, we will let you know why and explain any potential options to overcome the issues. If you are unable to overcome the issues the registration granted in the first step will cease. This is because under designs law, only new and distinctive designs can be protected.
How long does a design right last?
A design right can be registered for a maximum of 10 years.
A design right initially lasts for 5 years from the date you apply. You may choose to renew your design right so that it lasts for a further 5 years. You can only renew your design right once.
If you do not renew your design right it will cease once the initial 5-year period ends.If you do renew your design right it will cease after 10 years.
Once a design right has ceased you will no longer have exclusive use of the design.