11 Advances in Designs Law

One of the criticisms of the current design registration system is that it does not adequately reflect the nature of design or meet the needs of contemporary Australian designers and their practices. Since the Advisory Council on Intellectual Property (ACIP) review of the registration system in 2015, IP Australia has conducted extensive work to understand the role of designs in the intellectual property landscape, consulting with numerous stakeholders. As part of this work, reform options have emerged to modify the registered design system. This chapter examines these reform options. By exploring recent reform efforts and proposed changes to Australian design law, the chapter will investigate how the system can better accommodate modern design practices while maintaining its fundamental purpose of encouraging and protecting innovation.

The rapid pace of technological innovation has fundamentally transformed the nature of design in the 21st century. When the Designs Act 2003 (Cth) was enacted, many of today’s design challenges were barely conceivable. The emergence of virtual and digital designs, the proliferation of 3D printing technology, and the increasingly iterative nature of design development have created new forms of design that transcend traditional concepts of physical products.

Research by IP Australia reveals that design-related industries contribute approximately AU$ 67.5 billion per year to the Australian economy, yet less than 0.5% of Australian businesses have sought a design right in the past 16 years.^[1] This disparity suggests that the current system may not adequately serve the needs of modern designers and businesses.

The current system faces numerous challenges. Virtual designs, including graphical user interfaces and digital elements of products, currently fall outside traditional definitions of protectable subject matter despite other countries offering formal protection. The rise of 3D printing technology has revolutionised how products can be reproduced and modified, challenging conventional notions of design rights and infringement. Additionally, the iterative nature of modern design processes, particularly in digital and software development, conflicts with a system originally conceived for finished, physical products.

These technological developments are not merely creating new types of designs; they fundamentally challenge core concepts within design law, such as what constitutes a ‘product’, the definition of ‘visual features’, and the scope of protection that design rights offer. As a result, Australia is grappling with adapting its design protection regime to address these new realities while maintaining a careful balance between protecting innovation and promoting competition.

The reforms being considered by IP Australia represent the most significant changes to Australian design law since the introduction of the 2003 Act. Published consultation papers have explored virtual, partial, and iterative design protection. Each outlines a comprehensive reform program aimed at modernising the system to meet contemporary needs. These reforms build on the changes introduced by the Designs Amendment (Advisory Council on Intellectual Property Response) Act 2021, which implemented a grace period for designers who disclose their designs before filing an application. The current reform proposals aim to address fundamental structural issues within the designs system, particularly its ability to accommodate new forms of design innovation.

The chapter will also discuss international aspects that could inform the Australian registered design system. A lingering question has always been whether Australia would join The Hague Agreement, complementing the commitments of other major trading partners. In addition, WIPO recently concluded a diplomatic conference on a proposed Design Law Treaty. On November 22, 2024, WIPO Member States adopted the Riyadh Design Law Treaty. The Treaty aims to harmonise the procedures for obtaining design protection while leaving questions about subject matter and conditions for protection for member states to legislate.

Virtual Designs

The rise of virtual designs is one of the challenges faced by traditional design protection systems. As noted in Chapter 5, the current Australian designs framework presents a serious issue with virtual designs. While these designs can be registered as visual features of a display screen, they cannot be certified and enforced under the Act. This limitation arises from the Act’s fundamental stipulations that require a product to be physical,^[2] and that a design should pertain to the overall appearance of a product based on one or more of its visual features.^[3]

IP Australia’s recent research on virtual design protection highlights that transient features, such as a graphical user interface (GUI) that only appears on a mobile phone display screen when it is switched on, are not currently treated as visual features of the product.^[4] Moreover, while the registration of ‘display screens’ with user interfaces is permitted, most designs do not survive examination, leading to refusal.^[5] This inconsistency creates significant uncertainty for designers working in digital spaces.

Types of Virtual Designs

Virtual designs encompass a broad range of digital visual elements, including:

Graphical User Interfaces (GUIs) have become essential for how users interact with technology. These interfaces range from smartphone operating systems to complex industrial control panels. The visual design of these interfaces plays a crucial role in user experience and product differentiation.

Icons and animated icons serve as visual representations of functions or applications, becoming increasingly sophisticated and distinctive. These elements often represent a significant design investment and brand identity.

Augmented and Virtual Reality designs introduce entirely new design spaces where digital elements can either overlay or form complete virtual environments. These designs can encompass everything from virtual showrooms to interactive training spaces.

Projected interfaces and digital displays, like heads-up displays in vehicles or holographic interfaces, represent an emerging category where virtual designs interact with physical spaces in innovative ways.

Proposed Reforms

According to IP Australia’s consultation paper, several key reforms are being considered to accommodate virtual designs within the Australian design protection framework:^[6]

• The definition of ‘product’ would be expanded to include virtual products, defined as ‘an intangible thing, the use of which results in the display of visual features through electronic means’. This change would explicitly recognise virtual designs as protectable subject matter.^[7]
• The definition of ‘visual features’ would be amended to include features that appear for a limited time when the product is used normally. This change would protect designs that only become visible during use, such as animated interfaces or interactive elements.^[8]

• The system would also accommodate ‘composite products’ that combine physical and digital elements, such as smart devices with interactive displays.^[9] This approach recognises that modern products often blur the line between physical and virtual design elements.

Introducing virtual design protection would significantly modernise Australia’s design system. It would provide certainty for designers and businesses investing in digital innovation, encouraging greater investment in this rapidly growing sector.^[10] The reforms would also align Australian practice with international standards, facilitating better protection for Australian designers in global markets.^[11]

International Approaches

Many of Australia’s major trading partners have already implemented protection for virtual designs. The European Union, the United Kingdom, China, Japan, and the United States provide various forms of protection for virtual designs, particularly with GUIs and icons.^[12] Although the scope and kind of protection can differ between them. This international movement towards protecting virtual designs suggests that reform in this area is beneficial and necessary for maintaining Australia’s competitiveness in the global digital economy.

Challenges in Implementation

Implementing virtual design protection raises several complex issues that must be addressed. These include:

• Representation requirements for virtual designs must be adapted to capture the dynamic nature of many virtual designs. IP Australia proposes various means of representation, including multiple views showing different states of the design, although video files may not be immediately supported.^[13]
• The scope of protection must be clearly defined, particularly for designs that change over time or respond to user interaction. The proposed reforms suggest that the scope of protection sought must be clear to the familiar person considering the representations and any accompanying documentation.^[14]
• The intersection with copyright law presents particular challenges for virtual designs. The consultation paper notes significant uncertainty about how the existing copyright and design overlap provisions would apply to virtual designs, particularly regarding the distinction between 2D and 3D elements in virtual spaces.^[15]

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Partial Designs

The Australian registered design system currently faces significant limitations in protecting partial designs. Under the present framework, a design right protects the overall appearance of a physical product made in one piece. Still, it cannot protect the visual features of only part of that product. As detailed in IP Australia’s consultation paper on partial designs, this creates a significant gap in protection.^[16] For example, while a designer can protect the entire design of a cup, they cannot protect the innovative design of just the handle unless that handle is manufactured separately from the cup.^[17]

This limitation has significant practical implications. Designers often create innovative features that could be applied across multiple products but must currently register designs for each complete product to protect these features.^[18] This approach is expensive and inefficient, potentially reducing the incentive to pursue protection in Australia. ^[19] The situation is particularly problematic given that many of Australia’s major trading partners, including the European Union, United Kingdom, United States, China, Canada, Japan, Korea and Singapore, already protect partial designs.^[20]

Proposed Changes to the System

IP Australia has recommended changes to accommodate partial designs within the existing framework. A partial design is defined as the overall appearance of a part of a product resulting from one or more visual features of that part of the product.^[21] This definition encompasses both physical and virtual product elements, allowing protection for:

• Parts of physical products, such as handles, legs, or specific design elements, are integral to the whole product.^[22]
• Parts of virtual products, such as icons used in a graphical user interface, address the intersection between partial design protection and virtual design protection.^[23]

Notably, the partial design must be embodied in a product, whether physical, virtual, or composite (combining both physical and virtual elements).^[24] This requirement maintains the connection to practical application while providing flexibility in how partial designs can be protected.

Implementation Challenges

Introducing partial design protection raises several complex implementation challenges that must be carefully addressed. The consultation paper identifies key areas requiring attention:

Clarity of Protection: A new clarity requirement must be introduced, ensuring that the scope of protection in a design application is clear to the familiar person, taking into account both the illustrations and any written claims. This requirement will apply to all design applications, whether for partial designs or entire products.^[25]

Product Identification: Partial designs must be identified in terms of the product(s) they relate to, ensuring that third parties can understand the scope of protection being claimed. This may require more detailed product descriptions than those currently used for whole product designs.^[26]

Visual Representation: Applicants must clearly indicate which part of the product(s) the partial design relates to, using visual indicators in representations (such as solid or broken lines, shading, or boundaries), written claims, or both.^[27]

Impact on Design Rights

Introducing partial design protection will significantly impact how design rights can be obtained and enforced. The consultation paper proposes that designers should be free to register an entire product’s design or any parts of a product that best suit their needs.^[28] This flexibility allows designers to protect signature features across multiple products without filing separate applications for each one.

The assessment of newness and distinctiveness for partial designs must be modified to only consider designs or partial designs for products that are the same as or similar to the product(s) for which the partial design is registered.^[29] This approach aims to balance the broader protection offered by partial designs with the need for certainty in their scope of protection.

IP Australia also proposed that the test for substantial similarity in overall impression be adapted to partial designs.^[30] The proposed that a Registrar or the court:

• Must focus on the visual features of the partial design in the claimed part of the product(s)
• Could consider the unclaimed part of the product — but only for the purpose of understanding what the claimed part is for, and where it might be found on comparable products.^[31]

The relationship between partial design protection and existing intellectual property rights, particularly copyright, needs careful management. The consultation paper proposes that the current copyright/design overlap provisions should also apply to partial designs just as they do to whole designs, ensuring consistency in the treatment of three-dimensional designs within the intellectual property system.^[32]

These proposed reforms represent a significant modernisation of Australia’s design protection system, aligning it with international practices while offering greater flexibility for designers to protect their innovations.^[33] The changes would particularly benefit designers working across multiple product categories or focusing on specific design elements that could be applied to various products.

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Iterative Designs

The current system for registering designs in Australia follows a linear process that is increasingly at odds with modern design practices. As detailed in IP Australia’s consultation paper on protecting incremental improvements, contemporary design development typically involves multiple rounds of ideation, prototyping, and testing. ^[34] This iterative approach to design creates significant challenges within the current legal framework, which assumes a more straightforward path from concept to the final product.

Research conducted by IP Australia has revealed that many designers and businesses avoid accessing registered design protection due to the nature of their design process.^[35] Even experienced users find the registration process challenging and incompatible with the incremental nature of design, suggesting a fundamental misalignment between the legal framework and contemporary design practices.^[36]

Current Challenges in Protecting Iterative Designs

Under the present system, designers face a difficult choice when they develop an early form of their design. They must either:

1. File a design application immediately, risking that the final design might evolve away from the registered form, potentially leaving them with a registration that does not match what should be protected;
2. Wait until the design reaches its final form, leaving them vulnerable to competitors imitating the design in the interim; or
3. File multiple applications as the design evolves, facing the possibility that later applications might be unregistrable due to the first registration, resulting in wasted effort and costs.^[37]

As noted in IP Australia’s consultation paper, none of these options adequately serves the needs of modern designers, potentially discouraging the use of the registration system altogether.^[38]

Proposed Reform Models

IP Australia has proposed two complementary pathways for protecting iterative designs:

A preliminary designs pathway allows designers to submit a low-cost preliminary application and, within six months, file the main application incorporating any incremental changes. This approach particularly benefits designers in industries involving rapid changes, such as fashion or digital technology.^[39]

A post-registration ‘linking’ pathway would enable the registered design owner to create a subsequent design with incremental improvements to link the subsequent design application or registration to the earlier registered design. ^[40] This approach could particularly benefit industries with longer product life cycles or where more time is required for manufacturing and safety checks.

Implementation and Operation

The preliminary designs pathway enables designers to obtain a priority date via a preliminary design application, which remains unpublished.^[41] Within six months, they must file a main design application that incorporates any incremental improvements. The main design will receive the priority date of the preliminary design if it is substantially similar in overall impression.^[42]

The post-registration linking pathway allows chains of subsequent designs to be linked to an earlier registered design, provided each subsequent design is substantially similar to its immediate predecessor.^[43] This approach recognises that designs may evolve significantly while maintaining a connection to the original registered design.

Benefits and Challenges

The proposed reforms offer several significant benefits. They will provide greater flexibility for designers to protect their designs throughout the development process, potentially encouraging more use of the registration system. The reforms would also benefit Australian designers operating in global markets.

However, the reforms also present challenges that must be carefully managed. The preliminary design pathway includes potential complications for exporters, as overseas jurisdictions might not recognise priority claims from preliminary applications.^[44] For the post-registration linking pathway, challenges include managing the potential for scope creep in chains of linked designs and ensuring clarity about the term of protection for linked designs.^[45]

The proposed reforms have the potential to impact design innovation in Australia significantly. By providing more flexible pathways for protection that better align with real-world design practices, the reforms could encourage greater usage of the registration system and offer more certainty for designers and businesses investing in design development. This could be particularly valuable in sectors where rapid iteration and continuous improvement are essential to maintaining a competitive advantage.

The reforms would also help address the current situation where fewer than 0.5% of Australian businesses hold design rights, despite design-related industries contributing approximately AU$67.5 billion annually to the Australian economy. By making the system more accessible and better aligned with modern design practices, the reforms could help bridge this significant gap between design activity and design protection.

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Other Technological Challenges to Design Protection

3D Printing and Scanning

Three-dimensional printing technology has fundamentally transformed the relationship between design and manufacturing, challenging traditional concepts of design protection. This technology enables the rapid reproduction of physical objects from digital files, effectively democratising manufacturing capabilities that were once limited to industrial settings. The implications for design protection are profound, as the technology simultaneously enables innovation while potentially facilitating design infringement on an unprecedented scale.

The accessibility of 3D printing technology has created what might be termed a ‘prosumer’ class—individuals who both consume and produce designs.^[46] This shift has significant implications for enforcing design rights as the line between consumer and manufacturer becomes increasingly blurred. The technology enables not only exact reproduction but also easy modification of existing designs, raising complex questions about the scope of design protection.

3D scanning technology compounds the challenges presented by 3D printing.^[47] High-resolution scanners can now capture detailed three-dimensional data from physical objects, creating accurate digital models that can be modified or reproduced.^[48] This capability raises several legal and practical challenges:

• The technology enables the copying of designs without requiring physical possession or disassembly of the original item. This makes detecting potential infringement more difficult, as scanning can be conducted quickly.
• Digital models created through scanning can be easily modified before printing, potentially creating derivative works that may or may not infringe the original design rights. This raises questions about the threshold for substantial similarity in overall impression under the Designs Act.
• The global nature of digital file-sharing means that scanned designs can be easily distributed internationally, creating jurisdictional challenges for enforcing design rights and the role of secondary liability or authorisation.

Enforcement Challenges

The enforcement of design rights in an era of widespread 3D printing presents several unique challenges. Traditional enforcement mechanisms, which typically target commercial manufacturers and importers, may be less effective when dealing with distributed, small-scale reproduction by individuals. The challenges include:

• Detecting infringement becomes more difficult when reproduction occurs privately using personally owned equipment. This contrasts sharply with traditional manufacturing contexts, where commercial-scale reproduction is more visible.
• Quantifying the economic impact becomes complex when infringement occurs through multiple small-scale reproductions rather than large-scale commercial manufacturing. This complexity has implications for both damage calculations and enforcement strategies.
• The international nature of digital file-sharing creates jurisdictional complexities that may require new approaches to enforcement and international cooperation.

Legal and Policy Considerations

The rise of 3D printing technology necessitates careful consideration of how design law can balance innovation with protection. Key considerations include:

• The scope of design rights may need to be reconsidered to account for digital files that enable 3D printing. Questions arise about whether design rights should extend to these files, similar to how copyright protects digital files that permit the reproduction of protected works.
• The role of intermediaries, such as online platforms hosting 3D printable files, must be clearly defined. This includes consideration of their responsibilities in preventing design infringement and potential safe harbour provisions.
• Defences and exceptions may need to be evaluated to determine the appropriate boundaries between legitimate personal use and infringement in the context of 3D scanning and printing technology.

As 3D printing technology evolves and becomes more accessible, the design protection system must adapt to provide appropriate protection without stifling the technology’s innovative potential. This may require ongoing review and adjustment of legal frameworks to ensure they remain effective and balanced.

Artificial Intelligence and Generative Design

The emergence of artificial intelligence in design creates challenges for the designs system. AI systems are increasingly capable of generating new designs autonomously or semi-autonomously, raising fundamental questions about authorship, originality, and the nature of design innovation.^[49]

Generative design technology, which uses AI to explore multiple design solutions based on given parameters, presents particular challenges. When an AI system generates thousands of design variations and publishes them instantaneously, questions arise about assessing novelty and distinctiveness, especially when the designs are created through algorithmic processes rather than human creativity. The system must also grapple with whether AI-generated designs should be protected, and if so, who should be considered the designer—the AI system, its operator, or the person who specified the design parameters.

The volume of published designs that AI systems can generate also presents practical challenges for the registration system. Traditional examination processes may struggle to handle large numbers of related but slightly different designs, particularly when assessing substantial similarity in overall impression. This may require new approaches to examining and certifying designs.

International Aspects of Australian Designs Law

In ACIP’s final report on the review of the design registration system, the Council recommended harmonising the system with that of the rest of the world.^[50] Harmonisation was identified as an area of improvement to help Australian businesses engage with international markets and facilitate the protection of designs abroad.^[51] The 2016 Productivity Commission report into Australia’s Intellectual Property Arrangements endorsed ACIP’s recommendations.

In particular, their recommendations were:^[52]

The Hague Agreement

The Hague Agreement Concerning the International Registration of Industrial Designs (the ‘Hague Agreement’) simplifies the application process for applicants registering designs in multiple countries. The Hague Agreement operates on the principle of a centralised filing system, which provides a procedural framework for obtaining protection internationally rather than providing for a uniform law on the intellectual property protection of designs. A single international application filed with the World Intellectual Property Organisation (WIPO) can lead to registrations in up to 97 countries.

For Australia, there are implications for joining the Hague Agreement. The Designs Act would need to be amended to accommodate the Hague Agreement. In particular, the maximum term of protection would need to be increased to 15 years.

ACIP recommended not joining immediately but commencing an investigation into the benefits and costs of joining. Following this, in 2017-2018, IP Australia commenced an economic analysis of joining the Hague Agreement.^[53] The analysis found that the economic costs to Australia of joining the Hague Agreement outweighed the benefits at that time.^[54] This was primarily driven by the fact that non-residents filed almost three times more designs in Australia than Australian residents filed abroad.^[55] Non-residents maintained these registrations for longer on average. Joining the Hague Agreement was estimated to increase this disparity.^[56]

IP Australia also noted that Australians could file an application through the Hague system despite Australia not being a signatory to the agreement.^[57] However, this could only occur here an applicant has a:

• Domicile in the territory of the contracting party, or
• Habitual residence in the territory of the contracting party, or
• Real and effective industrial or commercial establishment in the territory of the contracting party.^[58]

The report also noted that the Hague Agreement landscape is changing, with some countries expected to join in the future, including China, Canada and Thailand.^[59] These accessions may impact any future cost-benefit analysis and could make it more beneficial for Australia to join. Following the report, China and Canada have joined the Hague Agreement.^[60] IP Australia indicated it would continue to monitor international developments, including any further accessions from Australia’s trading partners.^[61] In their report, IP Australia set out the net costs as follows:^[62]

The net present cost to Australia is estimated to be between approximately $25 million and $124 million over ten years, with $61 million being the best estimate. Ten-year impacts by stakeholder group are:

• Australian designers: a potential net benefit of approximately $0.03 million to $6 million, with a best estimate of $1.7 million. This is due to increased savings on international applications and increased profits from taking new designs overseas.
• Australian consumers: a net cost of approximately $23 million to $114 million, with a best estimate of $58 million. This is due to income flowing overseas from Australian consumers paying higher prices to non-resident designers over a longer term of design protection.
• Australian IP professionals: impacts estimated as between a benefit of approximately $0.3 million and a cost of $12 million, with the best estimate being a cost of $2.5 million. Australian IP professionals will receive some extra business from non-residents at the examination stage, but will likely lose more business at the filing stage as non-residents go through the Hague system.
• Australian Government: a net cost of approximately $2.3 to $3.4 million, with a best estimate of $2.8 million. This is due to the Information Technology system changes that will be required to process applications filed via the Hague Agreement.

IP Australia then published a response in December 2018 to the public consultation on the economic analysis of Australia joining the Hague Agreement.^[63] The response considered submissions from six stakeholders and presented revised estimates of the costs and benefits. The revised economic analysis estimated that the net present cost to Australia of joining the Hague Agreement would be between approximately $17.9 million and $87.3 million over ten years, with $43.1 million being the best estimate.^[64] Australian designers were estimated to receive a potential net benefit of between $0.06 million and $8.7 million.^[65] However, Australian consumers were estimated to face a net cost of between $18.4 million and $79.1 million due to additional design mark-up premiums paid to non-resident designers over a longer term of design protection.^[66]

IP Australia noted that the economic analysis forms part of the evidence base for considering whether Australia should join the Hague Agreement. IP Australia indicated it would continue to monitor the Hague Agreement landscape, including the impact of recent members such as Canada and China.^[67]

The WIPO Design Treaty

Another area of international harmonisation efforts mentioned in ACIP’s recommendations was the World Intellectual Property Organisation’s (WIPO) Design Law Treaty (DLT). Internationally, the process for applying protection designs varies, involving different procedures from country to country. Discussion about harmonising procedural aspects of design protection under a DLT started nearly 20 years ago, with the 15th session of the WIPO Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications in 2005. WIPO then negotiated the DLT and sought to harmonise procedural requirements. Then on November 22, 2024, WIPO member states approved the new DLT, also known as the Riyadh Design Law Treaty.

WIPO has described the Riyadh Treaty as a ‘framework for design protection procedures that are more predictable and make the procedures themselves less complex and more affordable. It will be easier for designers to file applications in several different jurisdictions.’^[68]

WIPO summarised what the Treaty will do is to:^[69]

• set a maximum list of indications or elements that designers must submit with an application. Establishing a closed list of elements will help to create a predictable framework for design protection procedures: designers wishing to file an application will know exactly what indications or elements may be required.
• allow applicants to choose how they represent the design in an application (drawings, photographs or, if admitted by the IP office, video).
• allow applicants to include several designs in a single application, under certain conditions.
• set out requirements for the granting of a filing date. Keeping the list of filing-date requirements for design applications to a minimum is crucial because, in the field of design, postponing the filing date can result in a definitive loss of rights.
• provide for a grace period of 12 months following a first disclosure of the design, during which such disclosure will not affect its validity for registration.
• allow applicants to keep their designs unpublished for at least six months after having secured a filing date.
• provide relief measures and offer some flexibility to applicants to prevent them from losing their rights if they miss a deadline. Without such measures, missing a time limit generally results in a loss of rights. In the case of designs, that loss is irreparable.
• simplify the procedure for requesting the renewal of a design registration.
• furthers the introduction of e-filing systems for designs and the electronic exchange of priority documents.

The text of the treaty, regulations and resolutions are available here: DLT/DC/26 [PDF]. The DLT itself will commence once at least 15 countries have ratified the treaty.

Significantly, the treaty ensures flexibility for member countries to create or keep their own rules about disclosure of Indigenous Knowledge used in designs applications, including Traditional Cultural Expressions and Traditional Knowledge, if they choose.

IP Australia commenced a consultation process to receive feedback leading up to the diplomatic conference for the DLT.^[70] Although they have indicated that much of the DLT text is agreeable, there were outstanding issues that they required feedback on. In particular:^[71]

• grace periods – namely the periods after public disclosure of the product when you can still seek design registration (Article 6).
• whether a procedural treaty should include substantive law (e.g. proposal for term of protection in Article 9).
• the option for an office to require disclosure when a designer has utilised any traditional knowledge, traditional cultural expressions or biological/genetic resources in the design (Article 3).
• whether IP offices should be required to provide an electronic system for design applications (Article 9ter and 9quater).
• the assistance WIPO should provide to developing countries (e.g. technical assistance and capacity building for the ratification of the treaty) (Article 22).

IP Australia is yet to publish the results of its consultation process. In addition, Australia’s participation in the treaty is subject to government consideration and a Parliamentary process to ratify the treaty.

Conclusion

The intersection of technological advancement and design law represents one of the most significant challenges facing Australia's intellectual property system. The emergence of virtual designs, the proliferation of 3D printing technology, and the increasingly iterative nature of design development have fundamentally challenged traditional concepts of design protection. These challenges have prompted a comprehensive review of Australia's design protection framework, resulting in significant proposed reforms to modernise the system.

The reforms proposed by IP Australia represent a substantial shift in how designs are protected in Australia. Introducing protection for virtual designs would recognise the growing importance of digital innovation and user interfaces in modern product design. The proposed protection for partial designs would provide designers with more flexible and efficient protection options, allowing them to protect innovative features across multiple products. Introducing mechanisms for protecting iterative designs would better align the system with contemporary design practices, particularly in fast-moving industries.

However, implementing these reforms presents several complex challenges that must be carefully managed. The various reform proposals must work together coherently. For example, the protection of virtual designs must integrate effectively with provisions for partial design protection, particularly for composite products that combine physical and virtual elements. In addition, while the reforms aim to align Australian practice more closely with major trading partners, differences in approach between jurisdictions must be carefully managed to avoid creating new complications for Australian designers seeking international protection.

These developments have significant implications for various stakeholders in the design ecosystem. For designers and businesses, the reforms promise more flexible and comprehensive protection options but also require careful consideration of how to use these new mechanisms best and navigate a more complex system. The ability to protect virtual designs, partial designs, and iterative improvements could provide valuable new tools for safeguarding innovation, particularly in digital and technology-focused industries.

For legal practitioners and advisors, the reforms present both opportunities and challenges. The more complex protection options will require careful strategic thinking about best-protecting clients' interests, especially when dealing with designs that span multiple categories or evolve over time. The intersection of different protection mechanisms, particularly ‘composite products’ that combine physical and virtual elements, will require a sophisticated understanding of the new framework.

For the examination system and courts, the reforms will likely require the development of new approaches to assessing registrability and infringement. Introducing virtual designs, in particular, will require new ways of thinking about visual features and substantial similarity in overall impression.

IP Australia's research has shown that design-related industries contribute significantly to the Australian economy, yet relatively few businesses currently hold design rights. The success of these reforms will ultimately be measured by their ability to bridge this gap, providing effective protection that encourages greater investment in design innovation while maintaining appropriate access to design features for competition and further innovation.