Reflection Essay Example

  • Category:
    Law
  • Document type:
    Article
  • Level:
    Undergraduate
  • Page:
    1
  • Words:
    627

Lecturer

Design protection

If Coca-cola were designing their soda bottle today they may consider a number of IP protections for their bottle design. A design under Section 5 of the Design Act 2003 (cth) is defined “ as the overall appearnce of the product resulting from the visual features of the product1. Under this definition Coca-cola will be able to protect the configuration, shape. ornamentation and pattern of the product2.

In Australia, intellectual property rights pertaining to the design of a products are mostly protected by registration of design3. According to Davidson, Monotti and Wiseman any type of product designs can be protected under design registaration4. Design registration covers the most complex to the simplest product.

The protection of product design through registration is however limited to the appearance of the product5. However, in Firmagroup Australia Pty Ltd v Byrne & Davidson Doors (1987) 180 CLR 483 functional purposes of a product were considered part of its design but “shape and configuration” also had to be conveyed6. Dart Industries Inc v Décor Corp Pty Ltd (1993) 179 CLR 101 asserted that the funtion of product cannot be considered for protection as a design7.

For Coca-cola’s new bottle to qualify for design registration its has to fulfil some conditions. Section 15 of the Design Act 2003 (cth) identifies a two step process for identifying design to that can be protected; it requires that designs be “new and distinctive”8 . As set out in World of Technologies (Aust) Pty Ltd v Tempo (Aust) Pty Ltd [2007] FCA 114, a design is considered new if it is not part of the “prior art base”. Section 16(2) considered a design distinctive if its substantially different in overall impression to other designs which are part of the art base9. The art base includes design registered in Australian and elsewhere around the world. Therefore, Coca-coal have to have a bootle design that has not been made previously. If the new Coca-coal design is new and distinctive then it can be offered protection under design protection. Under this protection, Coca-cola gets exclusive rights over the the usage of the bottle design as set out in section 10 of the Act10. Section 5 sets the period for design protection as 10 years from the day of registration11.

Alternative Protection

Apart from design protection Coca-cola may consider protecting their design under patents, trade marks or copyrights. Patent protection applies to product designs if their are functional features of the products that need to be protected12. For example, if the bootle design includes a sieve this can be protected under patent protection. It is possible to protect product designs under trade mark protection. However, this type of protection has limited applicability. Coca-cola will also get automatic copyright protection for the models or drawings which form the basis for the new design13. However, copyright protection cannot be used to protect the actual product design.

Bibliography

  1. Articles/Books/Reports

Davidson, M., J., Monotti, A., L., Wiseman, L., Australian Intellectual Property Law (New York, USA, Cambridge, 2008)

Firmagroup Australia Pty Ltd v Byrne & Davidson Doors (1987) 180 CLR 483

Dart Industries Inc v Décor Corp Pty Ltd (1993) 179 CLR 101

  1. Legislation

Design Act 2003 (cth)

1
Design Act 2003 (cth), s.5

2
Design Act 2003 (cth),s.7

3 Davidson, M., J., Monotti, A., L., Wiseman, L., Australian Intellectual Property Law (New York, USA, Cambridge, 2008)

5Design Act 2003 (cth), s.7

6
Firmagroup Australia Pty Ltd v Byrne & Davidson Doors (1987) 180 CLR 483

7
Dart Industries Inc v Décor Corp Pty Ltd (1993) 179 CLR 101

8
Design Act 2003 (cth), s.15

9
Design Act 2003 (cth), s.16

10
Design Act 2003 (cth), s.10

11
Design Act 2003 (cth), s.5

12 See Davidson, Monotti and Wiseman, above n 3