Online media sites have become a popular platform for both new and established designers to showcase their designs. It is a way to get public exposure, allowing designers to build and maintain relationships with current and prospective clients, but it’s easy to get lost in all the excitement of creating a new design without first ensuring your design is protected under the law.
What is a design?
A design is an overall appearance of a product that results from one or more visual features of the product. Visual features include the shape, configuration, pattern and any ornamentation exhibited by the product, but they do not include the feel of the product or the material used.
How can I protect my design?
Registering your design will provide you with enforceable and exclusive rights to use, and authorise others to use the design.
The Designs Act 2003 (Cth) (The Act) defines registrable designs to be designs that are distinctive and new when compared with the prior art base for the design, before its Priority Date. A Priority Date is the date that an application for a design registration is lodged. An art base includes designs publicly used in Australia, and designs published in a document within or outside Australia.
Because of the way The Act defines registrable designs, a design may no longer be considered as “new and distinctive” if it had already been published on a public domain, such as blogs or social media, before obtaining an identifiable Priority Date. For designers who wish to protect their designs, it may be worth considering the registration of designs before publishing work online or any public platform, to ensure ownership of their design.
How long are my designs protected for?
The term of registration for a design is 5 years from the filing date of the design application. You can also choose to renew the registration within the first five years of it being registered, thereby extending the term of registration from 5 years to 10 years.
What can I do if another person uses my design in ways I have not authorised?
A person infringes a registered design if they use a registered design without appropriate authority, or they have a design that is substantially similar to the registered design.
If your registered design is infringed, you may bring about proceedings in court against the infringer. If the court finds that there has been an infringement, you may be granted relief through an injunction, preventing the infringer from continuing to use the registered design without authority, or you may receive damages or an account of profits at your election.
Taking a matter to court can be costly, so it is often the case that a design owner will seek legal assistance to issue a Letter of Demand to the infringer, specifying the infringing conduct and asking them to take measures to stop (a cease and desist letter). Generally, this is an effective method of preventing people from continuing to infringe upon your design rights. However, this can be a double-edged sword if you are seeking compensation, as providing notice of infringement may allow the infringer to hide or destroy evidence.
It is important to seek legal advice as quickly as possible if you suspect that your design has been infringed upon so that the appropriate steps may be taken according to the case at hand.
Protecting your design rights
The law aims to protect designer’s rights over their intellectual property. However, it is important to first ensure that your designs are protected in the first place, so that you have a recognisable avenue to enforcing your rights.
If you are unsure whether your design is protected or believe your design is being infringed upon, do not hesitate to contact Gladwin Legal on or 1300 033 934 for advice or an obligation-free quote.
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