A design, in relation to a product, is defined as the overall appearance resulting from one or more visual features of the product.  Design registrations directed to graphical user interfaces and icons are commonly filed in relation to a product in the form of a “display screen” or “electronic device including a display screen” on which the graphical user interface or icon is displayed.

While the Australian Designs Office will register designs directed to graphical user interfaces (including icons), examination of those designs will be considered with the product to which the design is applied being at rest (i.e., off).  This approach was confirmed in the recent Designs Office decision of DRiV IP, LLC [2024] ADO 3.  Consequently, only features of the electronic device itself will be assessed for newness and distinctiveness when compared with the prior art base.  This approach effectively renders registered design protection for graphical user interfaces in Australia to be unenforceable.

The good news is that IP Australia has undertaken a review “to pursue a modern and accessible designs rights system”, and has indicated an intention to proceed with a proposal to protect virtual designs, including user interfaces and product elements only visible when the product is in use.