What is a design? Models, drawings and a product's look and feel
To be eligible for design protection, products, models or drawings must meet certain criteria. Design law is applied to the look and feel of an object, rather than its function, so when asking ‘what is a design’, it is the product’s aesthetics and appearance that must be considered. This can include the shape, contours, colours, ornamentation or texture/material of the whole product or just a part of it, so long as it is new and possesses its own ‘individual character’.
Unregistered design rights come into effect immediately on creation; however, where the design is a key feature of a product, model or drawing, it is generally advisable to register a design right to protect it.
What is a design: why register a design right?
In certain industries, the look and feel of a product can be as important to its market success as its function. The design features of an Apple computer, for example, are as important to the company’s brand and market share as that computer’s capability. Of course, that didn’t happen by chance. It takes creativity and investment to produce a design that is capable of differentiating a product from its competitors, which is why it’s often advisable to protect that design through registration.
What is a design: what types of design qualify for protection?
There are four basic requirements for protection under most design registration systems:
- Firstly, the design must meet the legal requirements for protection; in other words, it must relate to the appearance of the whole or part of a product, resulting from its use of lines, contours, colours, shape and texture, the materials of the product or its ornamentation;
- The design must be ‘new’ (in that it hasn’t been published or publicly disclosed) and possess ‘individual character’;
- The design must not be purely functional (i.e. its use should be for aesthetic purposes); and
- It must not be contrary to public policy or accepted principles of morality.
What is a design: the difference between drawings and models
In certain jurisdictions, design is separated into two distinct elements by design law: drawings and models. A drawing is considered to be a two-dimensional (2D) design, and can include the pattern of a fabric, a graphic symbol, logo or typographic font, so long as it meets the conditions of registration. In comparison, a model is viewed as a three dimensional (3D) design, and can cover everything from the shape of a piece of furniture to household appliances, tools or clothing. In some cases, the combination of a drawing and a model may also be protected; for example, where a drawing has been made into a three-dimensional object, such as the pattern of the fabric on a chair.
What is a design: the difference between design and copyright
For certain types of design, there can be considerable overlap between copyright and design rights, and in some situations both types of right may be applicable. Each offers different levels and lengths of protection, however, so it’s important to determine which right applies to your products, models or drawings. As a general guide, purely artistic works will fall under copyright protection, whereas products that also have a functional purpose – for example, jewellery or fashion items – will more likely be protected by design right, particularly where the item has been designed for mass production.
Your attorney will be able to advise as to whether your design is eligible for enforcement under design or copyright law, or both. Find out more about registering your designs nationally or internationally.
What is a design: further information
You can find out more about designs, models and drawings and the processes for obtaining, enforcing and exploiting design rights here. Alternatively, contact our customer support team using the contact form at the top right of this page.