In addition to traditional trade marks such as words and logos, businesses and designers alike often ask whether it is possible to protect the design of their product by way of registration. In Australia, two key mechanisms for safeguarding visual aspects of products are registered designs and 3D trade marks. Though they may appear similar at first glance, these two forms of protection serve distinct purposes and offer different types of coverage. Here’s a detailed look at their differences.
Registered Designs
A registered design in Australia provides protection specifically for the visual appearance of a product. This includes aspects such as shape, configuration, pattern, or ornamentation, but does not cover functional or technical features.
Key Characteristics of Registered Designs
- Scope of Protection: It covers the visual appearance of a product, not its functionality. For example, the intricate pattern on a designer handbag or the unique shape of a chair can be protected.
- Registration Process: To obtain protection, the design must be new and distinctive. The application process involves filing with IP Australia and providing representations of the design.
- Duration: A registered design is initially protected for five years, with the possibility of extending the protection for an additional five years, making a total of ten years.
- Exclusive Rights: The registration grants the owner exclusive rights to use the design, license it to others, and prevent unauthorized use but only once the registration has been certified by IP Australia.
3D Trade Marks
A 3D trade mark, also known as a shape trade mark, protects the distinctive shape of a product or its packaging that serves as a brand identifier in respect of specific goods and/or services. Unlike a registered design, a 3D trade mark focuses on brand identity rather than the design’s visual or ornamental aspects.
Key Characteristics of 3D Trade Marks
- Scope of Protection: It protects shapes that distinguish the goods or services of one business from those of others. For instance, the unique shape of a bottle or the contour of a product can be trade marked if it identifies the source of the goods.
- Registration Process: To qualify for a 3D trade mark, the shape must be distinctive and capable of distinguishing the goods or services of the owner from others in the market.
- Duration: Once registered, a 3D trade mark can be protected indefinitely, as long as it is renewed every ten years and is not challenged for non-use.
- Exclusive Rights: A registered 3D trade mark provides the owner with exclusive rights to use the shape as a trade mark, preventing others from using a similar shape that could cause confusion among consumers.
Comparative Analysis
- Purpose: Registered designs protect the aesthetic aspects of a product, while 3D trade marks protect shapes that function as brand identifiers.
- Protection Scope: Registered designs are concerned with the visual appearance and ornamentation, whereas 3D trade marks focus on the distinctiveness of shape as a source of origin.
- Duration and Renewal: Registered designs offer protection for up to 15 years, whereas 3D trademarks can be renewed indefinitely, provided they are used and remain distinctive.
- Application Requirements: Registered designs require proof of newness and distinctiveness in design, while 3D trade marks must be capable of functioning as a brand identifier and be distinguishable in the market.
Understanding these differences is crucial for businesses and designers to effectively protect their intellectual property and leverage their unique creations. By choosing the appropriate form of protection, they can ensure their designs and brand identities are safeguarded against unauthorised use.