IP Australia has been cooking up some changes, and we're not talking about sourdough.
Changes to Australia's design laws are on the way. Currently, one of the fundamental flaws in the Australian design laws is that as soon as a design is in the public domain, it cannot be registered as a design.
The proposed changes to the Designs Act will mean that designers will now be entitled to a grace period to allow them to decide whether they wish to formally register them.
What is a registered design?
A registered design protects a product's overall appearance, such as the shape, configuration, pattern or ornamentation of a product. Once registered, the owner can prevent other people using it for a period of up to 10 years.
What can be registered?
A design can be registered if it is new and distinctive. It cannot be identical to any other designs that are out there, or, substantially similar in overall impression to a prior design that has been used in Australia or published in a document anywhere in the world.
What's the problem?
Let's consider a small local fashion designer. That designer may make 20 designs for a season and only chooses to pursue the manufacturing and sale of 10 of those designs. Under the current laws, if the designer wanted to protect its collection for that season, they would be required to register all 20 designs. Why? Because once the designs are published the designs are no longer new and distinctive. This can be expensive, and many designers are not particular keen on wasting funds protecting designs they might not ever sell.
After a long period of review and consultations with stakeholders, it looks like we may have a fix – the introduction of a grace period.
Last week IP Australia has released its proposal for the implementations of the recommendations of the Advisory Council on Intellectual Property (ACIP) to improve the Australian design system. IP Australia is proceeding with a number of different proposals, which include:
- An automatic grace period of 12 months from the priority date, and the addition of a
- 'prior use defence' which will be based on Section 119 of the Patents Act 1990.
- The requirement to request registration of the design will be removed. Registration
- would now occur six months after the filing the application.
- Scrapping the very rarely used option of only publishing a design and not registering it.
- (Don't ask.)
These changes are yet to be made law, however, it's a solid step in the right direction. Let's say, this announcement is like the starter to the sourdough.
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