Chapter 4 Designs

IP report 2022 chapter4

Design rights protect the visual features of a product, which give it a unique appearance, such as its shape, pattern, configuration or ornamentation. When design concepts are made public, they may be easily copied by imitators, in which case the original producers may not financially benefit from their work as much as they could otherwise. The owner of a certified design has exclusive rights to use, license and/or commercialise the design for up to 10 years. For designs to be eligible for protection, they must be new and distinctive – that is, they must be dissimilar in overall impression to designs that constitute prior art.

Design applications, registrations and certifications

Design applications in Australia grew 13% in 2021, the steepest year-on-year growth observed over the past decade, reaching a record 8,110 applications. The strong growth reversed a downward trend, applications having fallen 5% in 2019 and a further 4% in 2020 (see Figure D1).

The 2021 growth can entirely be attributed to an increase in applications by non-residents. Non-resident applications grew 21% in 2021 (from 4,568 in 2020 to 5,516), while applications by Australian residents were stable, declining by less than 1% (from 2,604 to 2,595). Non-residents account for 68% of total applications, a proportion that has increased 9 percentage points since 2012.

Figure D1: Design right applications in Australia grew by 13% in 2021

In Australia, designs can be registered without substantive examination. In 2021, design registrations reached a record high number, at 8,022 up 27% on 2020. For design owners to enforce their rights in a design, it must be examined and certified by IP Australia. IP Australia granted 1,377 design certifications in 2021, up 38% – stronger proportional growth than for applications and registrations. Consistent growth was observed for resident and non-resident certifications: those for residents rose 36% (from 351 in 2020 to 477 in 2021); those for non-residents rose 39% (from 647 to 900).

Improving IP protections for Australian designers

In March 2022, several improvements to the design system will come into effect. Most significantly, a 12-month grace period has been introduced to ensure designers can register their designs after inadvertently disclosing them. Designs law in many other jurisdictions, such as the United States, Japan and Europe, provides 12-month grace periods, so this change will make it easier to coordinate IP protection across jurisdictions. The changes also streamline and improve the designs registration system and give more flexibility to designers in how they protect their products.

IP Australia is exploring a program of further reforms to ensure the Australian design rights system is fit for purpose and supports the Australian economy now and in the future. We are considering how the design rights system could accommodate non-physical or ‘virtual’ products and parts of products, and how to give more flexibility to designers to adapt their protection as their products change during development.

In addition, in principle agreement has been reached between Australia and the UK on a free trade agreement (FTA). Australia has agreed to make all reasonable efforts to join the Hague Agreement on Industrial Designs as part of that agreement. Accession to the Hague Agreement will provide new benefits for Australian designers by allowing them to protect their original creations overseas more easily and extending the term of protection available for designs in Australia from 10 to 15 years. The agreement allows time to consider legislative and system changes after entry into force of the FTA.

The ongoing reforms build on a 12-month review that involved extensive research into Australia’s design economy, the drivers of design innovation and the role of design rights.

Countries of origin

The leading foreign countries of origin for design right applications in 2021 were the US (US applicants were named on 2,024 applications), China (783), the UK (287), Germany (263) and Japan (241).1

In 2021, applications from China grew 61%, accelerating a growth trend observed over the past decade. From 2012 to 2021, applications from China have grown at a compound annual growth rate of 24%. Applications listing US applicants increased by 9%. However, the US share of total applications in 2021 is a percentage point lower than its 5-year moving average of 26%.

Focusing on ‘high-volume’ countries of origin (those in the top quartile for design applications in 2021), the strongest growth was observed in design applications from Hong Kong: these increased to 2.6 times their level in 2020. Strong relative increases also occurred in applications from France (+91%), Denmark (+70%) and the Netherlands (+64%).

Figure D2: Number and growth of design applications by country of origin

Design classes

In Australia, registered designs are classed in relation to products using the Locarno Classification, comprised of 32 product categories.2

In 2021, as in previous years, the leading product class for design applications was Means of transport and hoisting (704 filings), which encompasses all land, sea, air and space vehicles and their component parts (see Table T1). The second leading class was Recording, telecommunication or data processing equipment (658 filings).

Design has a visual language that can help communicate what a product or feature does. In this way, clever design can help build market acceptance for new technologies.3 Design can also excite users and encourage them to form strong attachments to products. For this reason, design can play a pronounced role in mature industries, helping to create difference between products that are functionally similar.4 The third leading class for design filings in 2021 was Packaging and containers, with applications in this class up 19% from 2020.

Table T1: Top 5 design classes

  Top applications  Change in applications,
2020-21
Means of transport or hoisting  704 +20%
Recording, telecommunication or data processing equipment 658 +25%
Medical and laboratory equipment 593 +13%
Packaging and containers 584 +20%
Furnishing 557 +21%

 

Figure D3 charts design activity in ‘high-volume’ classes (those above the mean for total applications in 2021). The strongest growth in 2021 was in applications for Lighting apparatus (+39%, from 199 in 2020 to 276). Australia saw a record boom in home renovations in 2021, with over A$1 billion spent each month between January and September.5 As Australians invested to upgrade their living environments and create comfortable workspaces at home, demand surged for lighting industry products, driving industry revenue to its highest level since 2008.6

Strong growth for design applications was also recorded for Machines not elsewhere specified (Class 15, +25%), including refrigerators, washing and drying machines, construction and agricultural machinery, engines, pumps and compressors and miscellaneous machinery like industrial robots. Applications for Games, toys, tents and sports goods (Class 21) grew 33% in 2020 and a further 23% in 2021 as millions of people at home searched for new forms of entertainment.

Figure D3: In 2021, design applications for Lighting apparatus (Class 26) grew by 29% as Australians invested to upgrade their homes

Leading applicants

Table D2 lists Australia’s leading resident and non-resident applicants for design rights. Australian-based fashion house Zimmermann Wear retained its top position in 2021 with 61 applications. New to the list of top filers was Phoenix Industries, a producer of tapware, showers and bathroom accessories, with 40 applications.

The 3rd-ranked resident filer was Vuly (36 applications), a Brisbane-based company that designs and manufactures outdoor play products. In 2020, Vuly won two Good Design Awards – Australia’s peak international design awards – in the Product Design and Lifestyle category.

Ranked 4th, Frankie 4 is an Australian shoe brand that has sought patent and design right protection for its podiatrist-designed footwear (29 applications). Australian fashion label With Jéan (28 applications) was ranked 5th.

Table D2. Top domestic and international applicants for design rights in Australia, 2021

 Top domestic applicants
Rank Applicant Total applications
1 Zimmermann Wear Pty Ltd 61
2 Phoenix Industries Pty Ltd 40
3 Vuly Property Pty Ltd 36
4 Frankie4 IP 1 Pty Ltd 29
5 With Jean Pty Ltd 28
 Top international applicants
Rank Applicant Total applications
1 Koninklijke Philips NV 152
2 Beijing Xiaomi Mobile Software Co Ltd 97
3 Apple Inc 95
4 Aussie Union Group Hongkong Ltd 62
5 Fisher & Paykel Healthcare Ltd 61

 

The list of top international applicants includes Dutch health technology company Philips (152 applications); consumer electronics and software brands, Xiaomi (97) and Apple (95); furniture seller Aussie Union Group (62); and Fisher & Paykel Healthcare (61), a manufacturer, designer and marketer of products and systems for use in respiratory care.

Research commissioned by IP Australia found that Australian design innovators and users of domestic design rights tend to be more globally active than the average Australian business.7 However, IP rights granted in Australia do not provide protection in other countries. Australian designers must file design right applications abroad to protect IP in other countries.

In 2020 (most recent WIPO data), the design count in applications by Australians abroad fell for the second consecutive year, to a total of 2,225 designs. Despite the 9% fall, total designs filed abroad remained at their 3rd-highest level since 2012.

Australians can seek design registration in other countries by filing applications directly with other IP offices or via the international Hague system. Joining the Hague would enable Australian designers easier access to international markets, including key destinations for design exports. The top destinations for Australian designs are the US (634 designs), European Union Intellectual Property Office (399), New Zealand (277) and China (260). The European Union became a member of the Hague Agreement in 2006, the US in 2015 and China joined in 2022.

Of the ‘high-volume’ destination countries (those in the top quartile for Australian-origin designs in 2020), Mexico experienced the strongest growth in designs from Australian residents (up 146% to 32 designs), followed by India (up 46%) and Singapore (up 26%).

  1. WIPO, 2021.
  2. We count an application as originating from a country if at least one applicant on the application is a resident of that country, as indicated by the applicant’s address.
  3. For details about the Locarno System, see https://www.wipo.int/classifications/locarno/en/.
  4. Eisenman M (2013), ‘Understanding aesthetic innovation in the context of technological evolution’. Academy of Management Review, 38(3): 332–351.
  5. Chan TH, J Mihm & ME Sosa (2018), ‘On styles in product design: An analysis of U.S. design patents’. Management Science, 64(3): 1230–1249.
  6. Williams S (2021), ‘How much longer can the renovation boom last?’ Sydney Morning Herald. Accessed 6 February 2022, https://www.smh.com.au/property/news/how-much-longer-can-the-renovation-boom-last-20211217-p59ihd.html. Madrid yearly review 2021 – international registration of marks
  7. IbisWorld (2021), ‘Australia Industry (ANZSIC) Report G4229: Electrical and Lighting Stores in Australia’. IbisWorld.