How Do I Protect My Designs? The Secret That Must Be Kept


How Do I Protect My Designs? The Secret That Must Be Kept

Creative people come in all shapes and sizes. Some are vivacious souls with a dash of eccentricity, while others live the life of a hermit, locked away as they work fervently on their project.

Something they all share, however, is a passion for what they do. Painters, writers, inventors and even entrepreneurs all have a knack for absorbing themselves completely in what they are creating. So, when they are eating, sleeping and breathing their latest work, the hardest thing for them to do is to keep it secret. But if they want to commercialise their product, that’s precisely what they must do.

Intellectual property (IP) is the fruit of the creative’s labour. It’s valuable and worth protecting, particularly if the creator wants to make money from it. IP that records information like written works, photography or CD’s are protected automatically by copyright laws. Other IP, like designs, inventions and trade marks, require registration before they are protected. Designs are what we’ll look at in this article.

What is a design?

Unlike an invention or innovation that deals with how a thing ‘works’, designs are all about how a thing ‘looks’. It might be the distinct colour or shape of your packaging, a new line of summer dresses, or the patterns on a range of phone covers. Provided it creates a unique appearance it is a design.

Why would I register?

Registering your design gives you the right to exclusively exploit its commercial value. That might mean that you use it yourself, licence its use to someone else, or sell it outright. Either way, the design is yours to deal with as you wish. That exclusivity means anyone else who tries to copy your design is in breach of your rights and you can take action against them. In some industries, fashion, for example, considerable value is held in the uniqueness of their designs.

How do I register?

An application to register a design is made through IP Australia; however, it is not as straight forward as a trade mark registration and might involve a number of professionals. The process has been streamlined by The Design Act 2004, and instead of ‘examining’ the application before it can be registered, it will only undergo a formalities test. The closer scrutiny of examination will only take place if the design rights ever need to be enforced. If a design is to be registered overseas, applications made within six months of the Australian lodgement, will be treated as having been lodged at the same time. Dates are important because the first person to register a valid design application owns it.

Registration lasts for five years and can be renewed for a further five years only.

Why all the secrecy?

If you need to enforce your rights as the owner of a registered design, the ‘examination’ process will take a closer look at whether your design is in fact ‘new’ and ‘distinctive’. This is where the secretive bit comes in. The closer scrutiny that’s done at this point will reveal if you’ve made your creation known to the public before you lodged your application. And if you have, it makes it very difficult to establish ‘newness.’

No matter how excited you are about what you’ve created, keep it under wraps until you’ve had professional advice and the appropriate protections are in place.

More information about designs (and all other types of intellectual property) can be found at IP Australia. Access the free information available and gain a fair understanding of the topic to maximise your time with an IP professional. Until then, don’t tell a soul.

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