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Copycats love unregistered designs!
If you run a business, one of the easiest ways for a competitor to ride on your success is to copy the look of your product and sell something that feels close enough to catch the same customer.
The best intellectual property right to combat the copying of a product design, is a design registration. However, design registrations remain criminally under-used by businesses, and even though design filings are increasing, they’re still dwarfed by other IP registrations. In 2025, a record year for design filings, there were 10,296 design applications filed, compared with 30,348 standard patent applications and a record 97,345 trade mark applications.
The disparity is surprising because design rights are not obscure rights for niche industries. Rather, design registration can be useful to almost any business that creates a product (physical or digital) where the design is important.
Here are five reasons why all businesses should pay more attention to design registrations.
1 They can protect the visual design of almost any product
Business owners often assume that design registrations only relate to “design-heavy” products. In reality, if the look of your product is important or helps you sell it, a design registration may be relevant.
The 2025 design registration filing data from IP Australia reinforces this. The leading product classes for design applications were furnishings (895 applications), transport (811), recording, telecommunications or data processing equipment (736), household goods (732) and tools and hardware (725).
Other products include clothing and dresses, confectionery, architectural products and extrusions, toys, car and vehicle components, fabric patterns, wallpaper patterns, product containers, industrial components and household appliances.
Some of the more interesting design applications/registrations include:
- the stick for a Magnum ice cream
- stemless in-ear headphones by Apple
- a space capsule
- the Google Maps Icon
- elements of Canva’s graphical interface
- a FN HERSTAL SA Ultra Light 7.62 calibre machine gun
- various Ferrari cars (both toy and actual versions)
- a Freddo Frog easter egg
- Zimmermann’s 2026 fashion collection
- a Russian Stealth Supersonic Single-Engine Aircraft.
There are, of course, various requirements that must be met before a design can be registered, including that the design is new and distinctive compared with the “prior art base”.
In addition, there are strict deadlines for filing a registration. A design registration must generally be filed within 1 year of the design being made public (subject to some qualifications) – but ideally, a registration would be filed before any public use is made of the design. Failure to do so could reduce the rights of the registration, or invalidate it altogether.
2 They’re cheap and quick to obtain
Many brand owners assume that obtaining a design registration is slow and expensive, but this is not the case. This is partly due to the unique two-stage design registration system – the first step is “registration” and the second step is the optional “certification”.
The first step, “registration” can be quick and cheap. Design applications can be straightforward to create and file, with the main requirement being clear graphical representations of the design, which can be line drawings, digital images, or even just photographs.
Once an application is filed, the Designs Office will briefly review it to ensure that the formalities are accurate. It will not undertake a detailed review of the design, or consider whether it is new or distinctive. Once this process is completed (usually around 8 weeks), if accepted, the design will be “registered” and the owner will own a design registration.
However, the registration is not enforceable until “certification” occurs. Certification is optional, and is a more involved step where the Designs Office will undertake a more thorough review of the design to determine whether it is new and distinctive compared to the prior art.
Only once a design registration is certified is it enforceable, meaning that the owner can take (or threaten) legal action against a third party. Depending on the Examiner’s view of the design, this process can require greater input from the design applicant, but in many cases the design will be certified with no issues.
This two-step process is unique in IP rights (other than the innovation patent system now being phased out). It’s a huge benefit to design registrations as businesses can quickly and cheaply file design rights, but without committing to a large upfront spend. Then, once registered, the business can either leave the design registrations as is, or incur the costs of certification immediately, or just wait and see whether the design becomes important or is infringed, and only then seek certification.
Indeed, the majority of design registrations may never be certified. In 2025, for example, 10,296 design applications were filed, but just 1,448 were certified.
3 They are generally more useful than other IP rights if/when a competitor copies your product design
Design registrations are generally the best IP right to use when dealing with third parties copying product designs. All other IP rights can be relevant, but usually have limitations when dealing with designs.
For example:
- Patents usually protect how a product works, rather than how it looks.
- Trade Marks generally protect branding.
Shape trade marks can sometimes be used to protect product shapes, but they are not always easy to obtain and infringement can be difficult to prove given the requirements that the infringer be using the product design “as a trade mark” (as a badge of origin and not merely as a product shape). That extra requirement can make shape trade marks difficult to rely on when a third party is copying a product’s appearance (but is irrelevant to a design infringement claim).
- Misleading conduct claims under the Australian Consumer Law and passing off can help in some cases, but there are also limitations.
For example, if a competitor copies a product design, but takes steps to ensure that consumers are not likely to be misled by the copied design, then they may avoid any misleading conduct.
This issue is commonly the reason why ACL claims in the Federal Court for similar product get-ups fail. For example, the owner of the Bodum brand of glassware recently took the owners of the Maxwell & Williams (M&W) brand to Court and alleged that M&W had copied the design of their double-walled glasses. Despite the Court finding that there were “marked similarities” between the designs, and that M&W had intended to adopt the design, the claim failed, in part because the products were all clearly branded, such that consumers were not likely to be misled or deceived by virtue of the similar designs.
Again, these factors would be irrelevant to a design infringement claim, where the Court would only look at the similarity of the design of products.
- Copyright also has limited application due to the ‘copyright/design overlap’, which is specifically intended to limit copyright protection over 3D products.
While it’s a complicated area, generally the design of a three-dimensional product may initially be protected by copyright, however once a product featuring the design has effectively been mass produced (generally 50 articles or more), the ‘copyright/design overlap’ kicks in, meaning that, from that time onwards, third parties are able to make 3D products featuring that design and not infringe the copyright. This generally means that copyright cannot be used to protect 3D product designs (but with some exceptions).
Of course, each IP right has its own strength, and ideally a business will have a full suite of protection and rely on all available IP rights. However, if you’re worried about competitors copying the look of your product, generally design registrations are the best form of protection.
4 They can be very powerful
Design registrations can be very powerful, both in terms of the extent of the protection and their effect on infringers.
In a design infringement claim, the Court will consider the objective question of whether an allegedly infringing product is “substantially similar in overall impression” to a design registration. This means that design infringement claims are usually more focused, and an infringer has less opportunity to raise circumstantial matters (e.g. the nature of the market, differences in branding and/or packaging) in its defence.
However, the way in which the Court will determine whether two designs are sufficiently similar can be complicated. Specifically, a Court will generally consider the design registration and the allegedly infringing product as a whole, the prior art base, any statement of newness and distinctiveness of the registration, the importance of similar visual features and the freedom the designer had to innovate. The Court will then determine from the perspective of a “familiar person”, whether the two designs are substantially similar in overall impression, often with the assistance of expert witnesses.
In addition, design infringement cases in the Courts are fairly uncommon, compared with trade mark or patent infringement cases, for example. The relative lack of precedent case law means that there is limited guidance as to how a Court would approach a specific infringement question.
These factors can lead to a fairly high level of uncertainty as to how a Court would determine a design infringement claim, and this uncertainty can create a high level of risk for copycats. Specifically, if an allegation of infringement is made, it can be difficult to entirely rule out the risk of infringement and, practically, this can mean the existence of a design registration and threats of design infringement proceedings can have a very powerful deterrent effect on copycats.
In addition, if infringement is found, the remedies which can be awarded by a Court can include:
- An injunction stopping the copycat from using the design. In practice, this would generally mean that all stock of an infringing item would need to be destroyed and the third party would need to adopt an entirely different design for their product. Obviously this could have a substantial effect on a business.
- Damages and additional damages. The financial remedies are also meaningful. The Designs Act allows a successful owner to seek damages or an account of profits, giving the owner a choice between compensating loss or stripping the infringer’s gains. In LED Technologies v Elecspess, Gordon J awarded $200,000 in damages for design infringement, discounted to reflect that not all sales by the infringers would otherwise have been made by the design owner, but increased to reflect under-reporting of actual sales.
5 Many companies are already increasing their reliance on design registrations
Some of the largest and most successful companies in Australia, and across the globe, are already filing design registrations in increasing numbers.
Design filings reached a record 10,296 applications in 2025 – 38 per cent above pre-pandemic levels – and registrations hit a new high of 9,727. The continued elevation in filings since 2022 suggests that demand for design protection has stabilised at a structurally higher level of growth than observed in previous decades.
The lead filers in 2025 include some of the world’s most recognisable brands. Internationally, Intercontinental Great Brands (part of the Mondelez group) led with 192 design applications in Australia (mainly confectionery and packaging). Other major international filers included Beijing Roborock Technology (172 applications – mainly vacuum cleaner related), Yeti Coolers (119 applications – mainly drinkware and cookware), Skechers USA (114 applications – shoes), SharkNinja (102 applications – home appliances) and Apple Inc (95).
Domestically, the trend is similar with many major Australian businesses increasing their reliance on designs. Major Australian filers in 2025 include:
- clothing companies Zimmermann (37 applications) and Magi Enterprises (36 applications)
- furniture companies such as Fido Home (29), Jardan Australia (22), Temple & Webster (22) and Koala (20)
- gaming companies including Aristocrat Technologies (30).
In addition to these companies, many major Australian businesses hold numerous design registrations including Canva, Breville, Oroton, Telstra and others. Each of these businesses compete on appearance, and are using the design system to lock in a competitive advantage.
The trend is not limited to domestic protection. Australian applicants filed 2,487 design applications abroad in 2024 – the highest level on record – with growth across all five leading destination markets. That outward activity signals a growing recognition that design protection can support export positioning, not just local enforcement.
Want to know more?
If the visual design of your product is important, design registrations must be considered. Design registrations are fast, cheap, and strong intellectual property rights that can deter and stop copycats.
With design filings growing, there are clear signs that more businesses are recognising the strategic value of this right. However, the gap between design filings and trade mark or patent filings suggests many businesses are still leaving this tool unused – and that is a mistake.
Our team of attorneys and lawyers can advise and guide you at every step of your IP journey – whether you have a new design or product, or you need to know what options you have to combat the copycats! Reach out to our friendly experts for all of your IP needs.