In Australia copyright subsists automatically upon creation of an original work. However, if the author of a design for a three-dimensional article wishes to protect it, then an application for registration must be made with the Designs Office of IP Australia.

A design may be registered if its appearance (shape, configuration, pattern and/or ornamentation) is new and distinctive compared to that published anywhere in the world or prior used or subject of an earlier application in Australia. Thus, the appearance of an article may sometimes be able to be protected by a registered design even if its structure or function cannot be protected by patent. In other instances, an invention may be covered by both patent and design protection.

A design application must include representations (photos and/or drawings) showing the design to be protected.

The design application should be filed before any non-confidential disclosure, except in some limited circumstances where there is copyright in the design and the disclosure falls short of "industrial application" of the design.

The period for filing foreign design applications claiming the priority of the first application is 6 months.

The maximum term of a registered design in Australia is 16 years for applications filed before 17 June 2004, or 10 years for designs filed under the new Designs Act which came into force on 17 June 2004. Applications filed under the old provisions were examined before registration, while under the new provisions an application is examined only for formalities and must be examined before the rights can be enforced". For more discussion on the new Designs Act provisions, click here.

Some designs may be registered as trade marks, where the article's appearance functions to indicate the trade source of goods, e.g. the shape of the Caramello Koala chocolate bar. See our discussion on trade mark.