Hi there. Intellectual property (IP) refers to new or original creations such as inventions, words, phrases, symbols, logos, designs and ideas. The law recognises that intellectual property is a valuable asset. As a business owner, there can be great commercial value in the intellectual property rights associated with your business.

There are many different types of IP that can be registered. For your purposes, you may want to register a design. A design is what makes a product look the way it does – its shape, configuration, pattern and ornamentation. A product’s design gives it a unique appearance that distinguishes it from other products. Registering a design gives the owner legal protection for the visual appearance of the product and exclusive rights to use, licence or sell the design for commercial purposes.

Registration protects a design for 5 years from the date of application, and can be renewed for a further 5 years. If a registration lapses, the design becomes freely available for anyone to use. Importantly, registering a design is only half the process. A design owner can only enforce their legal rights against third parties if the design has been ‘certified’ by examiners at IP Australia (www.ipaustralia.gov.au). A design will only be certified if it is ‘new and distinctive’.

In your situation, you may want to consider registering the design of your product and packaging. This will give you exclusive rights to deal with the design commercially. However, if your designer personally created the original design, he or she may want to assert their intellectual property rights in the design, either now or in the future. If there was no written agreement between you and the designer that addressed intellectual property rights, you should ask your designer to assign his or her intellectual property in the design to you. This can be done via a legal document known as a ‘deed of assignment’ or something similar. This is a technical legal document that will need to be prepared by a lawyer.

Suggested way forward

Before you register the design, you need to ensure that you hold all the intellectual property in the design. A lawyer can help you prepare the necessary documentation to make sure you properly acquire ownership of the design. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.