Design vs. Patent vs. Trade Mark – What to Choose?

When you’ve created something new, i.e. whether it’s a product, a brand identity, or a breakthrough innovation, protecting it is vital. But intellectual property comes in different forms and choosing the right one can feel overwhelming.

A design right, a patent, and a trade mark all protect different aspects of a creation. Picking the wrong one could mean gaps in your protection, missed opportunities, and potentially losing the advantage you worked so hard to create.

When is registering the design the right choice?

A design right protects the overall visual appearance of a product, i.e. shape, configuration, pattern, or ornamentation. It applies only to physical products that can be manufactured or handmade and produced on a commercial scale.

It doesn’t matter how the product works or what it’s made from, the design right focuses solely on how it looks.

Examples of registered designs-

• The sleek body shape of an Audi car model.
• A signature Zimmermann dress pattern and cut.
• The distinctive lines of a King Furniture sofa.

If your product’s visual appeal is what makes it stand out in the market, a design right gives you the exclusive ability to use that look in Australia, license it, or take action against anyone copying it without permission.

When should you be thinking about a trade mark instead?

A trade mark protects your brand identity, i.e. the things that help consumers distinguish your goods or services from those of others.

Trade marks are incredibly flexible. They can protect not just names and logos, but also-

• Words or phrases, e.g., “Just Do It”
• Letters or numbers, e.g., “BMW”
• Logos, e.g., the Nike swoosh
• Colours, e.g., Cadbury purple
• Shapes, e.g., the Coca-Cola bottle silhouette
• Sounds, e.g., the Intel chime
• Scents, movements, or packaging elements

If your main concern is preventing others from using your brand name, logo, or a recognizable brand element, then trade mark protection is the right choice.

For example, you might use a trade mark to protect the name of your furniture collection, while using design rights to protect the appearance of each individual piece.

When do you need a patent?

A patent protects how something works, i.e. its function, process, or underlying technology. Patents are best suited to new inventions and can cover-

• Technology, e.g., Google Maps
• Devices, e.g., the cochlear implant
• Substances, e.g., polymer banknotes
• Processes, e.g., a unique method of manufacturing

If your innovation lies in the mechanics, technology, or chemical composition of a product, and not its visual appearance,  then a patent is the way to go.

Where do design rights, trade marks, and patents overlap?

In many cases, you might need more than one type of IP protection. The boundaries between design rights, trade marks, and patents can overlap, and a well-protected product often uses all three strategically.

Patent and Design

A new smartphone may have a patented internal technology (patent protection), as well as, a registered design for the phone’s unique shape and surface features (design protection).

Filing both at the same time can be important, especially because making the design public before filing the patent could jeopardize your ability to secure the patent later.

Trade Mark and Design

A footwear brand might trade mark the brand name and logo, as well as, register a design for the distinctive sole pattern of its shoes.

Here, the trade mark protects the brand identity, while the design right ensures competitors can’t replicate the signature look.

Benefits of a registered design

If your product’s appearance plays a key role in its market success, securing a registered design can offer significant advantages. It grants you exclusive rights to use the design within Australia, ensuring that competitors cannot legally replicate its visual features.

You also gain control over who else can use the design and under what conditions, allowing you to license it strategically or restrict its use entirely. As your product gains traction in the market, the value of the registered design right can grow, enhancing your overall brand and asset portfolio.

That said, registration gives you the opportunity to apply for the same design right in other countries within six months, helping you establish international protection and maintain a competitive edge globally. Once the design is certified, you also acquire the legal authority to take action against copycats, reinforcing your position and safeguarding your product’s unique appearance.

What design rights don’t protect?

Understanding the limitations of design rights is just as crucial as recognizing their advantages. Design rights do not extend to abstract ideas or concepts that lack physical form. They also do not cover how a product functions, which falls under the domain of patents. Similarly, brand names, logos, and other branding elements are protected through trade mark law, not design registration.

Design rights also exclude protection for materials, product size, or features that can change over time. Additionally, partial elements of a design that are not applied to a complete product are not eligible for protection under design law.

Certain types of designs are explicitly excluded by legislation. These include scandalous or offensive designs, coats of arms, specific flags, and official emblems. Medals, banknotes, and integrated circuit layouts are also excluded, as are designs prohibited under the Olympic Insignia Protection Act 1987.

That said, if a design incorporates Aboriginal or Torres Strait Islander knowledge, cultural imagery, or stories, it is essential to ensure that the design is used respectfully and with the appropriate permissions. This helps preserve cultural integrity and supports ethical design practices.

Why work with an IP professional for design filing?

Filing for a design right might seem straightforward, but it’s easy to make costly mistakes, such as filing after your design has already been disclosed publicly, providing unclear representations, or missing the overseas filing window. Also, the fact of choosing the right IP protection to go forward with can be a tricky endeavor.

Our role is to ensure-

• Your application is strategically timed to maximize protection.
• The design is clearly and correctly represented.
• Potential overlaps with trade marks and patents are identified and managed.
• You have a complete protection plan, not just a single registration.

Protect what you’ve created

If your product’s appeal lies in its appearance, design registration is often the best first step, and it can be complemented by trade marks and patents where needed.

The important thing is to secure protection early, before your design is seen in public. Once registered, your design becomes a valuable commercial asset, i.e. one you control, one you can license or sell, and one that grows with your success.

So, if you need guidance on your design, trade mark or patent application, contact us now for a free consultation.