The look of a product can be worth as much as the product itself. A distinctive bottle silhouette, a signature chair profile, a patterned surface that customers recognise from across the room: these visual features are often the reason a product sells. Australian law protects that appearance through registered designs, a system administered by IP Australia under the Designs Act 2003 (Cth).
A registered design is not a patent. A patent protects how a product works, while a design right protects how it looks, and the two can coexist on the same product. What surprises most business owners is that the system runs in two separate stages. Registration is relatively quick and cheap, but it does not by itself let you stop copycats. That only happens once the design is certified, and certification is a separate step with its own risks. This article explains how the system operates end to end: what a design right covers, the tests of newness and distinctiveness, the 12-month grace period, ownership, enforcement, the renewal cycle, and what is involved in protecting a design overseas. It also flags the moments where getting professional help early saves the most money.
What a registered design protects
A design right protects the overall visual appearance of a product. Under s 7 of the Designs Act 2003 (Cth), the visual features of a product include its shape, configuration, pattern and ornamentation. The feel of the product and the materials it is made from are expressly excluded, although a visual feature can serve a functional purpose without losing protection.
The design must be applied to a product. Under s 6 of the Act, a product is a thing that is manufactured or hand made, and a component part of a complex product can qualify if it is made separately. Abstract ideas, methods and processes cannot be registered as designs, which is one of the differences from the patent system.
If your design is registered and certified, the owner holds the exclusive rights set out in s 71(1) of the Act: to make or offer to make a product embodying the design, to import such a product into Australia for sale or trade use, to sell, hire or otherwise dispose of it, to use or keep it for trade purposes, and to authorise others to do any of those things. In plain terms, you control who makes, sells and imports the look of the product.
Registration and certification: the two-stage system
The single most important thing to understand about Australian design law is that registration and certification are different steps, and they do different jobs. IP Australia describes applying for a design right as a two-part process that takes at least two months and costs a minimum of $250 (see IP Australia's design rights page). Registration gets your design onto the Register. Certification switches on your enforceable rights. You can only legally enforce a design right if it is certified.
Stage one: filing and registration
You file a design application with IP Australia under s 21 of the Act. The application must meet minimum filing requirements, and once it does, the Registrar notifies you of the filing date under s 24. Your filing date generally sets your priority date, the date from which the newness and distinctiveness of the design is assessed.
There is an important timing detail here. Under s 25 of the Act, the Registrar must publish details of each application once it meets the minimum filing requirements. In other words, your design enters the public record early in the process, not at the end. If you want the design kept quiet until launch, the law does not give you a secrecy window after filing, so the practical rule is to file before you disclose the design anywhere, not after.
After a formalities check, the design is registered and entered on the Register. Registration itself involves no substantive examination of whether the design is actually new and distinctive. That is what makes it fast and cheap, and it is also what makes certification a separate, riskier event.
Stage two: examination and certification
Certification happens through examination. Under s 63 of the Act, any person can request that the Registrar examine a registered design, and a court can order examination as well. During examination the Registrar assesses whether the design is new and distinctive against the prior art base, applying the tests discussed below.
If the examination finds no ground for revoking the registration, the Registrar issues a certificate of examination under s 67. If a ground for revocation is made out, the registration is revoked under s 68, and the design is taken never to have been registered at all. That is a serious consequence, and it is why a design that has never been examined carries real uncertainty.
The enforcement consequences follow directly. Under s 73(3) of the Act, infringement proceedings cannot be brought until the design has been examined and a certificate of examination has been issued. So a registered but uncertified design is best understood as a place in the queue: it records your priority and puts competitors on notice, but it does not yet let you sue. Many businesses request examination only when they need to enforce, or when a competitor forces the issue.
What makes a design registrable
To be registrable, a design must be new and distinctive when compared with the prior art base as it existed before the priority date (s 15 of the Act).
The two limbs work differently. Under s 16 of the Designs Act 2003 (Cth), a design is new unless it is identical to a design in the prior art base. It is distinctive unless it is substantially similar in overall impression to an earlier design. So the threshold is not exact copying: a design that is close enough in overall impression can fail the distinctiveness test even if no feature is identical.
The prior art base is broad. Under s 15(2) it includes designs publicly used in Australia, designs published in a document anywhere in the world, and designs disclosed in earlier-filed applications that later become open to public inspection. A design published overseas before your priority date can defeat your Australian application, which makes a proper search before filing worthwhile.
When assessing substantial similarity in overall impression, s 19 of the Act directs the decision maker to give more weight to similarities than to differences, to consider the state of development of the field, and to have regard to the freedom of the designer to innovate. An applicant can file a statement of newness and distinctiveness identifying particular visual features of the design as new and distinctive. That statement focuses the examination on those features, which can be a useful way to narrow and strengthen the protection you are claiming, and drafting it well is a task where an IP professional earns their fee.
The 12-month grace period
Australian law now includes a grace period that can rescue a design after an early public disclosure. Under s 17 of the Act, publications or uses of the design in the 12 months ending the day before the priority date are disregarded when assessing newness and distinctiveness, provided the disclosure was made by, or derived from, the designer or the owner. The provision was introduced by the Designs Amendment (Advisory Council on Intellectual Property Response) Act 2021 (Cth).
The grace period is a safety net, not a strategy. Not every disclosure qualifies, the rules are technical, and if your disclosure was made by someone who was not authorised, or was made in a way that falls outside the provision, the design may be unregistrable. The safest path remains filing before any public disclosure, including before showing the design to suppliers, running a crowdfunding campaign or posting it on social media. If you have already disclosed, the value of a quick professional assessment of whether the grace period applies is hard to overstate.
Who owns a design
Ownership under the Designs Act follows rules that are easy to get wrong. Under s 13 of the Act, the designer is the owner, but if the designer created the design in the course of employment, or under a contract with another person, that other person is the owner unless they have agreed otherwise. The same provision applies where the design is created under a contract with an external designer, which means the commissioning party can own the design by default, but only if the arrangements are set up properly.
This is where paperwork matters. If a contractor or employee created the design, you want a written record that the rights belong to the business, whether through the contract itself or a separate assignment. If the ownership chain is unclear, enforcement becomes difficult because only the registered owner or an exclusive licensee can bring infringement proceedings under s 73(1) of the Act.
Two further exemptions are worth knowing about. Under s 71A, a person who, before your priority date, made, imported, sold, used or kept a product embodying a design identical or substantially similar to yours, or took definite steps to do so, has a prior use exemption and can continue those acts without infringing. The earlier you file, the smaller the window for anyone to establish such a position. Under s 72, using a component part of a complex product for the purpose of repairing it does not infringe, which is the provision that keeps spare parts for repairs lawful.
Enforcing a certified design
Once your design is certified, infringement proceedings can be brought in a prescribed court. The court can order the infringing conduct to stop and award a remedy for the loss caused, and in practice injunctions are the remedy owners care about most, because a copycat on the shelf is doing damage every day it stays there. The exclusive rights in s 71(1) give the registered owner a clear basis to target anyone making, importing, selling or using products that embody the design.
If you discover copying while your design is still uncertified, the position is different. You cannot sue yet, but you can request examination immediately to get certified, and a letter of demand can sometimes stop the copying without litigation. Depending on how the copy was produced, other avenues may also be available, such as consumer law claims against misleading conduct or copyright where a drawing or artistic work was reproduced. Because the strategic options depend heavily on the facts, this is a situation where a lawyer should be brought in early rather than after the copies have multiplied.
The five-year term and renewal
A registered design lasts five years from the filing date, and the registration can be renewed once for a further five years, giving a maximum term of ten years. The term is set out in s 46 of the Act and renewal in s 47. The renewal application must be made within the period prescribed by the regulations, which in practice means acting before the first five-year term runs out.
Ten years is a shorter protection period than a patent or a trade mark, and it reflects the reality that product looks date quickly. It is still long enough to cover the commercial life of most consumer products, and it means the renewal dates need to be tracked. A design that lapses for a missed renewal has usually lost rights that cannot be recovered, so calendar the five-year milestone when you file.
Protecting your design overseas
An Australian registration protects you in Australia only. If the product will be sold overseas, protection must be secured in each market that matters.
The Hague System, administered by the World Intellectual Property Organisation (WIPO), is the international route for designs. It allows a single international application designating multiple member countries, filed through WIPO, and covers more than 90 countries (see IP Australia's Hague System page). One application can cover up to 100 designs, and each designated country then applies its own design law to the application.
There is an important caveat about Australia's own position. As at the time of writing, Australia is not yet a contracting party to the Hague System. IP Australia states that it cannot accept applications under the system and that Australians are not automatically entitled to use it. An Australian business can still use the Hague route if it is eligible through another avenue, for example as a national of, or resident in, a member country, or through an established business in one. Australia has agreed in principle to join and design law reform is ongoing, so this position may change, but for now the reliable route for an Australian business is to file directly in each country where protection matters.
Because design filing strategies are driven by where you sell, when you sell, and your budget, the sensible approach is to map the target markets first and then take advice on the cheapest coordinated way to cover them. If the brand name and logo matter as much as the product look, trade mark protection should be planned alongside the design filings, since the two rights do different jobs.
Where professional help fits
Most of the system is administrative, and a straightforward design application can be filed without a lawyer. The moments where professional help pays for itself are specific: searching the prior art base before filing, drafting the representations and any statement of newness and distinctiveness, assessing whether the grace period covers an existing disclosure, deciding when to request examination, responding to an examination report, and handling the ownership paperwork so the business actually owns what it paid for. A registered design attorney or IP lawyer does all of these routinely, and their involvement at the filing stage is far cheaper than discovering at certification that the design was not new after all.
The gap between registration and certification
If there is one thing to remember from this article, it is the gap between the two stages. Registration is fast, cheap and gives you a priority date, but it does not stop anyone copying your product. Certification is the step that makes the right enforceable, and it comes with the risk that examination reveals your design is not actually new or distinctive. Businesses that assume registration is protection, or that disclose the design publicly before filing, are the ones that lose the right entirely. File before you show the product to anyone, keep the ownership paperwork clean, and treat certification as part of the plan rather than an afterthought. A short conversation with an IP lawyer before you launch, while the design is still unpublished, is the cheapest insurance the system offers.