Preparing Application

Preparing Application - Griffith Hack

There are three important considerations when preparing an Australian design application. These are the Name of the Product, the Statement of Newness & Distinctiveness and the Form of the Representations.

Name of the Product

It is important to choose a name that is broad enough so as not to limit the design, but not too broad such that the design is not able to be classified, or its scope extends to unrelated products. For designs that are indefinite in one or more dimension(s), the product name may provide the best way of indicating this (e.g. "Profile of Indefinite Length").

Statement of Newness & Distinctiveness

This optional Statement enables the owner of a design to identify those features of the design which actually are they consider to be new and/or distinctive. When determining whether a conflicting design is "substantially similar in overall impression" the courts will give particular regard to those features identified in this Statement. Each case will be different, for example, if the design "as a whole" is new, then it may be appropriate not to include a Statement (or include a generalised Statement - e.g. that is directed to the design as a whole but to visual features of shape and configuration, as opposed to pattern and ornamentation).

It may also be advisable to include additional wording in the Statement that identifies those features that are not new and distinctive (i.e. a type of "disclaimer"). These may be features that are common to the trade, or common to a prior design. It is not yet clear whether such disclaimers will have any judicial effect. Such non-new and non-distinctive features may additionally (or alternatively) be indicated in the drawings using dotted/broken/phantom lines (see Form of the Representations).

Form of the Representations

Usually line drawings will represent a design in the least limiting way. However, sometimes line drawings will not be able to properly convey the design (e.g. convey its new and distinctive features), and photographs may be more appropriate. Sometimes colour drawings/photos may be required to convey the new and distinctive features of a design (e.g. where the design employs different colours of illumination).

It is generally advisable to at least include a perspective (3D) view/photo of a 3D design. For 2D designs (e.g. repeating patterns of indefinite width) a plan view may be sufficient. Also, if a particular view (e.g. the underside view of a product) shows a whole host of immaterial detail, consider omitting this view. Not every view needs to be shown in an Australian design application.

Consideration should also be given to using dotted/broken/phantom lines to indicate features that are not new and distinctive (e.g. features that may be common to the trade, or common to a prior design). Such dotted/broken/phantom lines may (or might not) be employed in conjunction with a Statement of Newness & Distinctiveness.

Please contact one of our listed people on the right for further advice.

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