A design is the overall appearance of a product. This includes the shape, configuration, pattern and ornamentation which, when applied to a product, give the product a unique visual appearance.

To protect a design, the design must be registered. The Designs Act 2003 (Cth) sets out the law relating to the registration of designs and the protection provided to registered designs in Australia and its territories.

A registered design does not protect the product itself or the product’s functionality. As stated above, a design is the visual appearance of a product. A product is something that is manufactured or handmade. The manner in which a product operates is not protected by designs legislation, but may be protected using a patent.

A design can be registered in Australia if the design is both:

• new — the design must not be identical to any design previously disclosed anywhere in the world or any design previously used in Australia; and

• distinctive — the design must not be substantially similar in overall impression to any design previously published anywhere in the world or any design previously used in Australia.

Once a design is registered, the product should be marked to identify that it is protected by a registered design.

See Registered design rights.

Registered design rights do not arise automatically. To obtain a registered design, the owner of the design must file an application of protection of the design with the Designs Office, which is part of IP Australia.

After filing, the application is checked by the Designs Office to determine that it meets all the formal requirements of the Designs Act . This is not a substantive examination. At this stage, no determination is made as to newness and distinctiveness. If this formalities check is passed, then the design is registered.

However, at this stage, the owner of the design cannot sue for infringement of the registered design. Before an infringement lawsuit can be commenced, the registered design must be certified.

At any time after registration, the owner of the registered design can request that the design be examined by the Designs Office. Anyone else, including a competitor or the Designs Office itself, may also initiate examination of a registered design. Then, the Designs Office will undertake a substantive examination of the design. This will involve a search of prior designs to determine whether the design is new and distinctive.

If the examination process is successful, the Designs Office will issue a Certificate of Examination and if it is unsuccessful the design registration will be revoked.

Upon certification, the design registration becomes enforceable in an infringement proceeding.

Foreign citizens and foreign companies can apply for an Australian design registration, even if they do not carry on business or sell products in Australia.

See Design registration process.

The protection afforded by a design registration is only for the appearance of a product, and not for the product itself or the manner in which it operates.

A design registration will be infringed by making, importing, selling, offering to sell, hiring or using a product that embodies the design. The test for infringement includes assessing whether the infringing design is “substantially similar in overall impression” to the registered design.

In an infringement action, the alleged infringer can bring a counterclaim to have the registered design revoked, for example, on the ground that it should not have been granted in the first place by the Designs Office.

Generally, for many products, the protection granted by a registered design is not strong. This is because for many products there is a "crowded field", and minor changes to the design by the alleged infringer may be sufficient to take the alleged infringing product outside the scope of the registered design.

See Infringement.

Design registrations are territorial. There is no worldwide registered design. A registered design in Australia only protects the design in Australia, and gives no foreign protection.

Thus, if international protection is required, design applications must be filed and granted in each country where protection is desired. There are treaties to assist with the international filing process, such as the Paris Convention.

The laws and scope of protection given to designs are different in many countries to those of Australia.

In the United States, a registered design is called a design patent. However, this should not be confused with a standard patent (also called a utility patent) that protects the functionality of the product or the product itself.

See International issues.