Australian Design Registrations are obtainable in respect of a design applied to a product. Thus, to be registrable as a design, there is a requirement that a design is present and that the design is applied to a product.
In, for example, Europe, it is possible to obtain design registration in respect of fonts, type faces and logos, and there are numerous examples of these on the European designs register.
However, the current position taken by IP Australia is that fonts, type faces and logos are not registrable as designs. IP Australia’s position is that, while fonts, type faces and logos may constitute a design, there is no product to which the design is applied; and it is the absence of a product that prevents these designs being registrable as Australia designs. IP Australia’s position is summarized in the Design Examiner’s Manual of Practice and Procedure. Section 10.5 of the Manual states:
“Logos, type-fonts … are not considered to be ‘products’. They do not meet the definition of ‘product’ under Australian law, so on their own they cannot be registered.”
Section 10.10 of the Manual illustrates an example logo which, in isolation, is not registrable. However, the logo is registrable if applied to a product – the product being a t-shirt in the example shown.
IP Australia has recently proposed several enhancements to modernize the Australian design system. The proposed enhancements will expand the range of registrable designs to include:
– virtual, non-physical designs, such as screen displays, screen icons and graphical user interfaces (GUIs);
– partial designs, whereby design protection would be available for parts of a product made in one piece (for example, the handle of a tea cup); and
– allow greater flexibility for designers to protect incremental improvements to their designs.
These three proposed changes will be welcome to many design filers, although the precise form of these enhancements is still some way from being finalized. The consultation process for submissions on the proposals has now closed, with IP Australia now in the process of refining the proposals to report on the outcomes to the Government. The Government will then decide whether to proceed with legislation and further consultation.
Importantly, the above referred proposed enhancements don’t extend to the protection of fonts, type-faces and logos; and so we recommend that design filers bear this in mind when considering their future Australian design filing strategies.
Copyright and/or trade mark protection may, however, be available for any unique font, type-face or logo, and so we would be pleased to discuss these options with you.
For any questions on these issues or other design matters, please contact the head of our designs team, Davin Merritt at davin.merritt@pof.com.au.
