21 October 2026 | Read time: 5 min
In today’s society, dupe culture is becoming increasingly mainstream, and businesses are facing copycats at every turn.
From fashion and jewellery, to furniture, beauty packaging and homewares, it has never been easier for copycats to spot a successful product, recreate its look and launch a competing version online, sometimes within weeks.
For businesses operating in product and design industries, a strong intellectual property (IP) strategy is essential.
Copyright, trade marks and patents can all play a part. However, there is another form of protection that is often overlooked: registered design rights.
So, what are they, and when are they worth the investment?
What are registered design rights?
In Australia, designs are registered through IP Australia under the Designs Act 2003 (Cth) (Designs Act).
A registered design right protects the overall visual appearance of a physical product that is ‘new’ and ‘distinctive’. This may include its shape, configuration, pattern or ornamentation.
Think of a chair with a unique silhouette, a handbag with an original shape, or a ring with a distinctive new shape and proportions.
Registered designs protect how a product looks, not how it works or the brand name attached to it. Those elements may be protected separately through other IP rights, such as patents, trade marks or copyright.
When it comes to design rights, the key question is whether the visual appearance of your product can be protected.
When is a design ‘new and distinctive’?
To be certified and enforceable, a design must be new and distinctive when compared with the ‘prior art base’
The prior art base consists of designs which were publicly used in Australia or published in a document anywhere in the world, before the priority date of your design application (being the date you apply to register your design).
Additionally, designs which meet each of the following criteria will also fall within the prior art base against which your design is assessed:
Even if your design is not identical to something in the prior art base, minor differences may not be enough for it to be considered distinctive. For example, simply changing the colour of the zip on an existing handbag design, or the number of buttons on a garment from 2 to 3, may not be enough. What matters is the overall visual impression created by the design.
What protection does a registered design provide?
The owner of a registered design has exclusive rights in Australia to commercially deal with products embodying the registered design, including by making, importing or selling them.
Notably, protection is not limited to exact copies of the design. It may also provide an avenue to act against a product that embodies a design which is identical to, or ‘substantially similar in overall impression’ to your registered design.
For example, if you register the design of a signature ring and another business releases one with the same overall form, proportions and arrangement of stones, but makes minor changes to the band, those changes may not be enough to avoid infringement.
Unlike some other IP claims, infringement of a registered design does not depend on proving that the other party actually knew of or copied your design. Infringement may occur regardless.
What other benefits does a registered design provide?
A registered design can also be sold or licensed, making them potentially valuable IP assets.
How long does protection last?
Protection initially lasts for 5 years and can be renewed once, providing a maximum term of 10 years.
Registration is not the same as certification.
There is one important catch: a registered design cannot be enforced unless it has been examined and certified.
At registration, IP Australia checks formalities. Certification involves the substantive examination, where IP Australia determines whether the design is new and distinctive.
If a design passes this examination and is certified, the registered (and certified) design can be enforced against alleged infringers. If it does not pass, the registration may ultimately be revoked.
Some businesses seek certification early for important designs. Others wait until there is a commercial reason, for example, when a copycat appears.
An IP lawyer experienced in design law can help you navigate both stages and develop a protection strategy aligned with your commercial priorities, including which designs to register and when to seek certification.
Why timing matters when registering a design.
Publicly disclosing a design before filing can affect whether it can later be protected.
Importantly, this means your own disclosure could later be raised against your design and prevent it from being considered new and distinctive (and therefore from being certified and enforced) unless a grace period or another exception applies.
Grace periods.
Australia has a 12-month grace period that may allow certain disclosures of your design to be disregarded (ie not treated as part of the prior art base for that same design) if an application is filed within that period.
However, this should be treated as a safety net, not a launch strategy.
The grace period is subject to conditions and exceptions. In some circumstances, a third party that starts using the design before you file may be able to rely on the prior user exemption to infringement.
Additionally, some countries may offer no grace period at all.
The safest approach? Consider your Australian and international filing strategy before making the design public.
Which designs should your business register?
A common question from our clients is: ‘How do we know which designs to register before we release them?’
Sometimes a signature product only becomes obvious once the market responds.
The answer does not need to be ‘register everything.’ A practical design strategy should reflect your budget, launch cycle and broader commercial goals.
For a larger business, this may mean selecting a few distinctive pieces from each collection or product range. A smaller business or independent designer may instead focus on one or two designs with the greatest commercial value.
For example, a fashion label might prioritise pieces with unusual silhouettes. A jewellery business may focus on a distinctive piece intended to become part of its signature range. A furniture studio may protect a chair it plans to sell for years, not every seasonal colour variation.
Consider the design’s distinctiveness, expected lifespan, importance to your brand, likelihood of imitation and intended markets. The goal is to direct your budget towards the designs that matter most and make that decision before a dupe appears.
An experienced IP lawyer can help you weigh these considerations and develop a filing strategy that reflects your commercial priorities.
Design rights – part of the bigger IP picture.
Registered design rights rarely operate in isolation. Copyright, trade marks, patents, confidential information and contracts may also be relevant.
The interaction between copyright and design law also requires care. Registering or commercially manufacturing a design can affect the ability to rely on copyright to prevent others from reproducing that design, depending on the circumstances.
Ownership and a clear chain of title in relation to IP rights should also be addressed where employees, contractors or external studios contribute to the design process.
A strong IP strategy looks at the product, identifies the commercially valuable elements and uses the right combination of protections.
If your business is developing a new product or planning an upcoming launch, consider design protection early.
Once a product is public, or a copycat is already in the market, your options may be more limited.
Looking for advice on your IP protection strategy or assistance registering your designs? Get in touch with our IP team.
Associate
Alyce is a commercial lawyer who advises clients across diverse industries including retail, fashion, design, beauty, lifestyle, media and other consumer (Read more)
