If a competitor copies your product and your instinctive response is, ‘they’ve taken the whole feel of it’, design law may ask a different question: where is that in the drawings?
That disconnect is not a quirk of any one dispute. It reflects how registered design systems are built. In New Zealand design protection is anchored in features that ‘appeal to and are judged solely by the eye’. And in Australia, design protection is secured for the overall appearance of the product resulting from visual features of the product. In practice, that means a design is reduced to a set of clear, static drawings placed on a register, ready to be compared later. The best drawings are literally black and white.
As explored in recent academic work on the distinction between technical and affective designs, this emphasis on static, visual representation has deeper consequences. Design law tends to privilege what can be rendered clearly and objectively, while sidelining dynamic, sensory and emotional aspects that are often central to a product’s success in the market.[1]
For many products, the system works well. But for some design-led business, there is something the law isn’t seeing: products often succeed because of experience, while design protection is framed around what can be captured and assessed visually.
Where experience outpaces representation
A considerable amount of commercial value sits between appearance and use.
Products are chosen not only because of how they look when viewed at rest, but because of how they move, how they feel in the hand, how colour operates in real conditions, or the emotional response the product is designed to trigger. These features are not peripheral. They are often the reason a product stands out in a crowded market.
The difficulty is that these qualities do not always translate neatly into the form the design register is built to accommodate. This is not because the law considers them unimportant, but because the system’s tools for recognition are limited.
The kinds of features that sit uneasily within the frame
This tension tends to appear repeatedly in certain categories of design.
Movement and transformation are familiar examples. Static images can show a product in different configurations, but they rarely capture the beauty of motion itself. Where the appeal lies in the transition, the register can only ever reflect fragments of the experience.
Digital interfaces expose the same issue in a contemporary form. Where a design is experienced as a sequence, still images struggle to convey what users actually experience.
Colour presents a different challenge. While colour can be commercially decisive, it sits awkwardly within design law. Static representations can flatten vibrancy and contrast, and colour is rarely treated as the design in its own right.
Texture and materiality raise similar problems. Products may sell because they feel soft, solid or premium, yet unless those qualities have a clear visual signature, they can be difficult to anchor legally. Australia specifically excludes the feel of the product and the materials used in the product.
Finally, there is the affective dimension: the sense of playfulness, reassurance or quality a product creates. As the academic analysis observes, these affective qualities are often central to a design’s success, yet are precisely the aspects most likely to be lost when design is reduced to a technical representation.[1]
Why this matters later, not just at filing
The register performs an important function. It provides a stable reference point. The register is something others can inspect, assess and compare against.
But that stability has consequences. When disputes arise, attention inevitably narrows to what the register shows. Even where a product is experienced in motion, in use or through touch, the legal analysis is anchored to the filed representations.
Where the commercially distinctive feature is absent, simplified or difficult to read from those representations, there is a risk that disputes become arguments about the wrong thing. This is not because courts or examiners fail to grasp commercial reality, but because the register defines what can be compared.
Filing as translation, not formality
The easy response is to treat these limitations as inevitable and file what is easiest to depict.
But that is often where the commercial gap opens.
Filing is not just a formality exercise. It is a translation exercise: you are translating a lived, embodied product into a form the legal system is best equipped to recognise. The system cannot capture everything, but it helps to understand where it will might fall short.
Approached this way, filing becomes less about ticking requirements and more about recognising which aspects of value survive the translation and which get lost.
Questions we should ask before filing
When experience is part of the value, a different set of questions often proves more useful than a checklist of formalities.
What makes this product sell? Is it a transformation, a colour treatment, a surface finish, a particular interaction, or the way the product appears in use?
If a competitor copied that feature, would it be legible on the register? Or would it sit in the gaps between what the register can easily express?
Are there different states of the product that matter commercially, and if so, what story does the register tell about those states?
Is colour essential to the design, or does the product succeed across variations? Each possibility points to a different filing logic.
Where feel or materiality drives appeal, is there a visual cue that carries that impression, or is this an area where design law is being asked to do something it is not well equipped to do?
And finally, are design rights being relied on to protect elements that may sit more comfortably elsewhere, or that cannot realistically be pinned down through visual representation alone?
Concluding remarks
Design systems continue to privilege what can be reduced to a clear, static depiction and judged visually. That gives the system coherence and predictability, but it also imposes limits.
For design‑led businesses, the task is not to overcome those limits, but to understand them. Filing works best when treated as a careful translation of commercial value into legal form. But we need to have a clear view of what will be carried through, and what will be left behind.
[1] See J C Lai & S Barclay, “Design law for the technical versus affective designs”, Legal Studies (Cambridge University Press, 2026), which examines how design law systematically favours technical representation over dynamic, sensory and affective aspects of design.
