Last updated: 
6 October 2020

Different IP rights can protect different aspects of your ideas. Successful Australian businesses often combine design rights with patents and/or trade marks.

Applying for the wrong type of IP can be costly. Before you apply for a design right, it is important to understand:

  • the difference between IP rights
  • where they overlap
  • how they relate to your product or business

The overlap between design rights and other IP can be complex. It may be in your best interests to consult an IP professional experienced in designs. Learn more about IP professionals.

If you have general questions about the different types of IP, you can contact us.

Copyright

In Australia, copyright automatically protects the expression of an idea as soon you document it.

Copyright generally protects artistic works. Common works protected by copyright include:

  • books
  • films
  • music and sound recordings
  • newspapers and magazines
  • artwork

Copyright protects designs which are not yet produced on a commercial scale.

While IP Australia administers design rights, we do not administer copyright. For more information please see the Department of Infrastructure, Transport, Regional Development and Communication.

Where is the overlap between design rights and copyright?

Generally speaking, you cannot protect your design with both copyright and a design right at the same time.

In most instances, you will lose copyright protection in either of the following situations:

  • if you ‘industrially apply’ and make copies of your design. Generally, if 50 or more copies of are design are made, it is said to be industrially applied. However, this number can vary depending on the nature of your industry
  • if you register a design right

If you plan on manufacturing and commercialising your design, it is important to consider applying for a design right early. A certified design right gives you the legal right to take actions against others using it. Remember, keep all sketches and prototypes confidential until you have applied for your design. This includes not posting on social media and not writing about it in trade journals.

The overlap between design rights and copyright is complex. It may be in your best interests to seek some further advice from:

Patents

A patent protects the way something works or operates, such as a:

  • device
  • substance
  • method
  • process

It must be new, useful, and inventive. Your patent might be a new kitchen appliance or a biological vaccine.

Learn more about patents.

Where is the overlap between design rights and patents?

Both patents and design rights can protect different features of the same product.

Depending on the nature of their product, businesses often use both design rights and patents as part of their IP strategy. They may use a patent to protect how their product works and a design right to protect its visual appearance.

Trade marks

A trade mark is a form of brand protection that distinguishes your goods and services from those of your competitors.

While trade marks can be almost anything which distinguishes your brand, the most common types include:

  • letters, numbers, words or phrases
  • logos
  • sounds
  • shapes
  • colour
  • a combination of the above

Your trade mark might be your corporate logo, your brand name or a jingle you use in an advertisement.

Learn more about trade marks.

Where is the overlap between design rights and trade marks?

Both trade marks and design rights can protect the shape, colour, and branding on products. Each right has different restrictions and competitive advantages.

Trade marks Design rights
Identifies your brand and distinguishes your goods or services from those of other traders Protects the overall visual appearance of your product, including the shape, colour and ornamentation
Can already exist in the marketplace before registration The design must be new and distinctive and cannot already exist in the marketplace
Functional shapes or those common to the trade can be difficult to protect with a trade mark Products with a functional purpose can be protected (if they are not similar to other designs published worldwide)
Australian trade mark registrations can effectively last forever if they continue to be used and renewed Australian registered design rights have a maximum life span of 10 years

 

Depending on the nature of their product, businesses often use both design rights and trade marks as part of their IP strategy. They may use a trade mark to protect the name of a product range and several design rights to protect the visual appearance of each product in the range.

Case study

Let's illustrate this with an example.

You are a handbag designer and you create a unique leather handbag that can charge a phone while in your bag. Your bag also has your logo embossed on the front.

At this stage, your original sketches and prototypes are automatically protected by copyright. If you choose to manufacture copies of your handbag on a commercial scale, you will lose this copyright protection.

You believe that this bag will be popular with customers and decide you want to mass produce the handbag. Before you begin marketing and production, it is important to think about how IP can protect your idea. Remember that you must keep your idea a secret until you have applied. Even posting a picture or video on social media before you apply could jeopardise your ability to claim a design right or patent.

You decide on the following IP strategy:

  • to protect the overall visual appearance of your handbag, you choose to apply for a design right
  • to protect the technology that allows the handbag to charge a phone while in the bag, you choose to apply for a patent
  • to protect the logo (which is your brand and how people will recognise your handbag from those of other traders), you choose to apply for a trade mark registration