In New Zealand, the aesthetic design of an article can be protected by both copyright and by registered design. Does this mean that both copyright and registered designs offer the same protection? Is one form of protection better than the other? To consider these questions further, let’s look at each form of protection.
Copyright is an intellectual property right that is created automatically in New Zealand when someone creates an artistic work, such as a design of a three-dimensional product that is ‘industrially applied’ (produced in substantial numbers). Copyright protection in New Zealand is free and lasts for up to 16 years from when it was first industrially applied.
Contrast this with registered design protection, which provides a monopoly right for a design that is registered at the Intellectual Property Office of New Zealand (IPONZ). For a design to be registered, it must be new at the time that an application for design registration is made. This means that the design needs to have been kept confidential until that time. There is also a cost involved in registering a design. The maximum term of protection for a New Zealand registered design is 15 years.
So far then, copyright is a clear winner in terms of cost, term of protection and ease of obtaining the rights to protection.
However, there is an important difference between the two forms of protection – copyright only protects against copying (which must be proven), whereas a registered design can be enforced against an infringer regardless of whether or not the infringer copied the design.
There are also many countries (including Australia) that do not recognize copyright in three dimensional products like New Zealand does, so relying on copyright to protect your product’s aesthetic is much more difficult overseas than it is in New Zealand.
Registered intellectual property rights can also be attractive to investors and product distributors, to licensees, and to prospective buyers of a company that owns intellectual property rights. Registered rights are typically valued more highly than unregistered rights, like copyright and know-how, because unregistered rights can be difficult to define and protect. These are important considerations when deciding on a protection strategy for a product design.