Registered Designs (and Trade Dress) — The IP Right Most Product Businesses Are Missing - Ep 40

If you've launched a product before protecting its design, you may have already lost your chance to register it — not made it harder, lost it, permanently. That timing trap is one of the biggest reasons product businesses miss out on one of the most useful, and most underused, IP rights available to them.

In this episode, Elise breaks down registered designs — what they protect, why they matter commercially, and why timing is everything.

She covers:

• What a registered design actually protects: the visual appearance of a product — shape, configuration, pattern, ornamentation — not how it works (that's patents) and not your brand (that's trade marks)
• The overlap with copyright, and the quirk where copyright can be lost once a design is industrially applied
• Why design protection is one of the few areas of IP where being early isn't just better — it's often the only option, because a design generally needs to be new and distinctive at the time you file
• A common real-world pattern: a founder develops a genuinely distinctive product, launches without filing, and later finds a near-identical version on a competitor's site — with the registration window already closed
• Why the scope of what's protectable is broader than people assume (packaging, tech, homewares, medical devices — even part of a product)
• The extra step of examination and certification, and why registering a design alone doesn't automatically give you enforcement rights
• Trade dress: what it means, why Australia doesn't have a direct equivalent, and how registered designs, trade marks, and the Australian Consumer Law can combine to protect a product's look

Key takeaway:

Design protection is a pre-launch decision, not a reactive one. If you're developing a new product or packaging, ask the design-registration question before you launch — not after.

Mentioned in this episode:

• The craft peanut butter jar case — Elise Explains IP, episode 004 (www.elisesteegstra.com/004)
• Shape and colour marks — Elise Explains IP, episode 013 (www.elisesteegstra.com/013)
• Van Leeuwen Ice Cream LLC v. Rebel Creamery LLC — a US trade dress case in which a federal court found Rebel Creamery had intentionally copied Van Leeuwen's ice cream packaging (matching pastel cardboard pints, monochrome lids, and black script lettering), ordering Rebel to pay roughly US$23.8 million and redesign its packaging. Rebel has since filed for Chapter 11 bankruptcy protection while it appeals. A useful real-world illustration of how far "look and feel" protection can reach — even without any claim over a name or logo.

Next step

Not sure whether your product's design is protected — or protectable? Run the free IP Risk and Ownership Audit on Elise's website, or book a Strategy Call.

Disclaimer: This podcast is intended for general educational purposes only and does not constitute legal advice. You should obtain advice tailored to your circumstances before acting on any information discussed in this episode.