Design Down Under: Navigating the unique accent of Australian design law

Article  \  20 Mar 2024

Imagine trying to understand the subtle differences between an Australian, an American, and a European accent. Each has its quirks, and just when you think you've got a handle on one, you're thrown a curveball by another. This is a lot like navigating the intricacies of design law across these diverse legal landscapes.

A prime example of this is the real-life scenario that unfolded in 2023 in Wynnes Patent and Trade Marks Attorneys Pty Ltd v Wamlez Pty Ltd. This wasn't just any case; it was like a crash course in understanding how the Australian Designs Office interprets design drawings, especially when it comes to the styles of lines used in the drawings.

The facts of Wynnes v Wamlez  illustrate perfectly how different 'accents' in design law can lead to entirely different interpretations and outcomes. In the US and Europe, the design community has a certain way of 'speaking' through their drawings, using dashed or broken lines to show what's not being claimed, kind of like dropping hints without saying everything outright. However, Australia sings a different tune, preferring to look at the entire composition, challenging the 'partial claiming' approach that's more common in the US and Europe.

Then there's the Statement of Newness and Distinctiveness (SoND), which in the Aussie context, is your guide to what makes a design stand out from the crowd. It's a bit like highlighting the unique phrases or slang that makes an accent distinctly Australian, British, or American. But in this case, the SoND didn't make a clear distinction between the broken and solid lines, leading to a decision to view the design as a whole entity.

For those used to filing design applications in the US or Europe, this case serves as a reminder to adjust your strategy when playing on Australia's field. It's about embracing the holistic view, considering the design in its entirety. It’s also about making sure the SoND clearly states what's special about your design by clearly defining the new and distinctive elements.

So, in wrapping up, navigating Australian design law is like getting your ears accustomed to a new accent. Wynnes v Wamlez shines a spotlight on what makes Australian design law unique. For anyone looking to protect their designs Down Under, getting to grips with these nuances, as well as keeping up to date with the outcomes and changes resulting from IP Australia's ongoing design review, is key to making certain your design speaks the local language, loud and clear.

If you want to ensure your design doesn’t get lost in translation, reach out to a member of AJ Park’s specialist design team.


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