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Continuing the Replica Design Fight

In Part two of our series with K&L Gates on replica designs, we look at the ways in which new and original designs can be protected.

Above: The Elephant Wood by Neuland. Available from Kristalia

 

The most effective method of preventing the unauthorised copying of a furniture design in Australia is to register the design under the Designs Act 2003 (Cth). The registered designs system offers significant benefits:
 

  • applying for a registered design is a relatively cheap and easy process
  • registered designs protect the visual features of a product
  • visual features include the shape and configuration (3D features) and the pattern and ornamentation (2D features) of a product
  • once registered, the owner of the design is granted exclusive rights in the design for the term of registration, being a maximum of 10 years
  • this means that owners of registered designs can take legal action against competitors offering products that embody similar designs to their registered designs.

 

It is important to bear in mind that a design can only be registered if it is new and distinctive. The design must not have been disclosed to the public prior to filing the design application. This means that designers cannot retroactively register their designs once they become aware of copying in the marketplace. Therefore, it is critical that designers file design applications before exposing their designs to the public. This includes releasing an item for sale, featuring the design in a magazine or displaying it in store.

Creators of handmade, artistic furniture items that are crafted principally for aesthetic rather than functional purposes may also benefit from copyright protection in their pieces as ‘works of artistic craftsmanship’. Copyright law offers a substantial period of protection, generally the life of the creator of the artistic work plus 70 years. There is no system of copyright registration in Australia and copyright subsists in original works from the time that the work is produced or documented in a material form. However, designers should be aware that Australian copyright law does not offer protection for functional artistic works. Therefore, it is imperative that designers of functional furniture, homewares and lighting designs apply for registration of their new and original designs prior to any public disclosure.

Explore this topic more at the Vivid event GET REAL – DON’T BE FAKE: the importance of supporting authentic design, held at Stylecraft June 2nd. Tickets available here.


K&L Gates
klgates.com


Please contact us if you would like to discuss the most effective method of protecting your designs.

Christine Danos, Senior Associate, christine.danos@klgates.com; Gregory Pieris, Senior Associate, gregory.pieris@klgates.com; Chris Round, Partner, chris.round@klgates.com

 

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