-- JonathanMo - 14 Sep 2015

Australian designs protection

In Australia, designs are protected by Commonwealth legislation. The current law, the Designs Act 2003 (Cth) (DA) came into force on 17 June 2004, and replaced the 1906 Act - considered to be very much out of date. The DA is intended to give effect to the government's response to the ALRC's Report No. 74 of 1995, which identified two major problems with the 1906 law - the ease of registration, which did not require great novelty; and the inadequacy of protection against infringement. The DA also addresses Australia's obligations under the WTO's TRIPS Agreement, to which Australia has acceded. The Designs (Consequential Amendments) Act 2003 (Cth), which also came into force on 17 June 2004, amends the Copyright Act 1968 (Cth) ss.74-77 relating to the overlap between copyright and designs law.

The DA aims to preserve 'to the owner of the design the commercial value resulting from customers preferring the appearance of articles which have that design to that of those which do not have it' (see AMP Inc v Utilux Pty Ltd (1972) RPC 103 at 108).

The DA also provides a more streamlined registration system, under which applications undergo only a formalities check prior to being registered and published (see DA ss.21-61). A design is examined only to check compliance with formal requirements, not whether the design is in fact 'new and distinctive.' However, a design registration cannot be relied upon in litigation until it has been subject to examination and certification.

Because of transitional provisions, some elements of the 1906 Act may still apply, particularly in respect of some types of infringements against designs registered under the old Act. See Axe Australasia Pty Ltd v Australume Pty Ltd [2006] FCA 668; (2006) 69 IPR 45.