Design registration for digital products and UI in Australia

UPDATE (30 April 2026): A fresh and further update from 30 April 2026 signals intent to proceed with an exposure draft of contemplated legislation as below. This suggests that applicants should consider filing virtual designs as necessary, buoyed by increased confidence that the measures will in fact be enacted in the foreseeable future.

The design registrability of graphical user interfaces (GUIs) in Australia is a genuinely vexed issue, and one that continues to catch applicants off guard. You would get the (mistaken) impression that design registrations for GUIs are valid and enforceable if you inspected the volume of filings in the Australian Design Register. Unfortunately, Australia remains out of step with other offices, particularly United States and Europe, which permit registration of GUIs. There is a road to reform, however, and there may be legislative change coming to cover so-called virtual designs. As of writing, lack of certification/enforceability has not deterred many applicants from filing interface designs in Australia. There are thousands of them upon the Designs Register. Legal decisions however continue to affirm that transient designs are not covered by the current Designs Act 2003 (Cth).

Best steps for applicants

Should you elect to file design applications for an electronic interface design, it is recommended that you specify the product as an 'electronic device' or similar as applicable rather than a GUI as such. A statement of newness and distinctiveness can optionally be filed, indicating that the features of the electronic device's interface are new and distinctive. All this should be nothing for the moment, and certification will, for the foreseeable future, not be forthcoming.

Strong support for change

IP Australia sought consultation in 2023 and there was strong support for change that would lend protection to virtual designs, partial designs and incremental designs. And it seems there is appetite to implement these changes. Virtual designs embrace not just conventional GUIs but also virtual reality interfaces, augmented reality interfaces, heads-up displays and so on. And presumably digital products such as typefaces, avatars, in-game mods etc. Further details on the consultation is published, as updated 6 August 2024. The Federal Government is now considering draft legislation, with further updates expected in 2026. So stay tuned.

IP Australia plans to progress these two measures, as productivity enhancing initiatives that will support growth in the designs sector. Feedback from the 2023 public consultation has helped to refine the policy settings for these proposals, without introducing unnecessary complexity in the design right system.

Australia's two-step registration

It is worth underscoring that the design application proceeds in two parts in Australia. Filing and registration (on formalities only) and later optional examination/certification that is necessary ahead of enforcement. Applicants typically defer certification, owing to additional costs, and proceed with certification only if there is an approaching prospect of enforcement. Applications featuring GUIs can proceed to registration, but at present there remains a block to securing certification. Filing however permits the possibility of a future path to certification, assuming any legislative amendments are retrospective.

Designs Office stance

The Apple decision, namely Apple Inc [2017] ADO 6 (14 June 2017), offers the clearest insight into existing practice and interpretation of the law in this area. The approach was more recently confirmed in DRiV IP, LLC [2024] ADO 3 (3 October 2024). The designs in question 201914249 and 201914251, which feature variant DRiV logos on nominal phone screens. Conveniently, the stance is that these applications are assessed with the product at rest, that is, the device turned off.

Currently the practice of the Registrar is to examine designs 'at rest', meaning that for the purposes of the comparison with prior art, a product will be taken to be switched to an off state. An obvious implication of this is that images that may be displayed on a screen when switched on, are not visual features for the purposes of any comparison with prior art. The basis for this approach was explained in Apple Inc ('Apple') where a delegate of the Registrar found that the visual matter shown as having been displayed on the screen is not viewed as a visual feature which is 'of' the product per se.

Final note

The registered design term is ten years, and with possible reforms say 0 to 3 years away, filing may make for a calculated strategy for some applicants with high investment in virtual designs.