As part of an ongoing review of the Australian designs system, IP Australia is seeking public feedback on possible designs law changes by Tuesday 8 August 2023.
This review is the second part of designs reform. An earlier review occurred in 2019, which resulted in a 12-month grace period among other changes.
The current round of consultation covers three topics:
- virtual designs – the protection of non-physical designs and active-state designs (including virtual or augmented realities, screen icons and graphical user interfaces (GUIs))
- partial designs – the protection of part of a product made in one piece
- incremental designs – the protection of designs as designers improve them throughout the design lifecycle.
Both virtual designs and partial designs were considered in the first part of the designs consultation, but were not implemented. IP Australia gave their reasons for not implementing those changes here.
Regarding virtual designs, IP Australia acknowledged the value in protecting virtual designs as independent products. However, their view was that it would create an exception to the current requirement that designs must be linked to tangible products. IP Australia did not see a strong case for legislative change because introducing virtual design protection could complicate matters for businesses, making it harder to determine their freedom to operate and challenge design validity.
In terms of partial designs, IP Australia considered a case for legislative change had not been made. They believed that while aligning with other jurisdictions could benefit Australians seeking to register designs abroad, implementing partial design protection would likely complicate matters for businesses when it comes to assessing their freedom to operate and challenging the validity of specific designs. In addition, IP Australia considers there is limited consistency in the international approaches used for partial design protection.
IP Australia also note that the existing designs legislation is based on definitions that emphasize the overall appearance of the complete product. Incorporating protection for partial designs would require extensive and intricate legislative modifications due to the need for changes in multiple definitions within the legislation.
We encourage clients and anyone with an interest in the Australian designs system to make a submission before Tuesday 8 August 2023. You can make a submission though IP Australia’s consultation hub.