-- JonathanMo - 14 Sep 2015

What is a design?

Section 5 of the DA defines a design as follows:

A 'product'

A 'product' is defined as 'a thing that is manufactured or hand-made is a product' [DA s.6(1)]. However, it should be noted that the design is quite distinct from the article to which it is applied.

Designs for a product of indefinite dimension or length are only registrable under the DA if the product's cross-section is fixed or varies only according to a regular pattern, has a repeating pattern, or all its dimensions remain in proportion [DA s.6(2)]. This enables designs of aluminium extrusions or repeatable wallpaper patterns to be registered (under the old Act, this was not permissible). See Brisbane Aluminium Fabricators and Supplies Pty Ltd v Techni Interiors Pty Ltd [1991] FCA 619; (1991) 23 IPR 107. See also Bondor Pty Ltd v National Panels Pty Ltd (1991) 23 IPR 289.

A component part of a complex product is recognised as a product for the purposes of the DA if the component is made separately from the complex product [DA s.6(1)], while a kit is taken to be a product when it is assembled.

A 'visual feature'

A 'visual feature' includes 'the shape, configuration, pattern and ornamentation of the product'. A visual feature may, but need not, serve a functional purpose. However, the feel of the product, the materials used, and any indefinite dimension of the product are not visual features [DA s.7(1)-(3)].

It should be noted that a design registration merely protects the way a product looks. A design for the purposes of the DA does not include a method or principle of construction, even if that method of construction involved gives the product its shape. While the shape of a product can be protected, the method of applying the shape to the product cannot.

Similarly, 'design' does not encompass any aspect of how the product works or functions. Even if the design features contribute to the product's function, or have a solely functional purpose, a design registration will only protect the appearance of the product. However, the functionality of the product may be protectable under patent legislation.