10.9. Product: Indefinite dimensions

A thing that includes one or more indefinite dimensions as part of its design can be considered a product. A product that is indefinite in one or two dimensions can be registered as a single design right.

Background

Two previous Federal Court decisions found that the design of an article (product) having an identical cross section, but indefinite length was not registrable – Bondor v National Panels 23 IPR 289, and Brisbane Aluminium v Techni Interiors 23 IPR 107. The basis of these decisions was that design protection is for an overall fixed shape, and that an item having an indefinite dimension did not have a particular shape. In response to these decisions, section 18(3) of the 1906 Designs Act was introduced. This provision allowed for the registration of an article or a part of an article of indefinite extent in one or two dimensions and provided a departure from the normal rule of a fixed overall appearance of a product.

The ALRC (Report 74) reviewed this concept and recommended extending the criteria for registrability and protection (recommendation 15). This recommendation allows for the protection of a design of a product with one indefinite dimension, for example varying length but the same cross section throughout, and the design of a product with more than one indefinite dimension provided that at least one of an extended criteria applies to the product or the part of the product where an indefinite dimension is claimed. This recommendation was implemented and applied to s 6(3).

Section 6(3) was drafted to cover a range of indefinite situations. In particular, things where:

• The indefinite dimension applies to the entire length of the product – such as simple extrusion;

• The indefinite dimension applies to only part of the article – such as the body-section of a bottle, or the handle of a broom; and

• The indefinite dimension applies to part of an article in two dimensions – such as the width and height of a window frame.

For a thing that attempts to claim indefinite dimensions to be treated as a product under s 6(3), one or more of the following criteria must be satisfied:

(a) a cross-section taken across any indefinite dimension is fixed or varies according to a regular pattern

Examples are:

• Simple extrusions having no variation in cross-section shape or dimension.

• Things that have a variation in the cross-sectional shape or dimension, as long as there is a repeating pattern along the indefinite dimension. For instance, a metal beam with repeating holes along its length.

• Things where part of the thing along that dimension is indefinite – such as a bottle with a mid-section of indefinite length. In this situation the requirement regarding variation according to a regular pattern would apply to the part (or section) that is indicated to be indefinite.

Note: a product that claims to be indefinite in more than one dimension will not meet this criterion if the cross-section in one dimension intersects with the cross-section in another dimension – as in this situation the cross-section in at least one of those dimensions is not fixed.

(b) all the dimensions remain in proportion

This provision applies to products where the indefiniteness occurs in more than one dimension.

An example being:

• A window frame with an indefinite claim applied to both the width and height.

Representations should be interpreted in a manner that gives validity (i.e. that the indefinite claim across more than one dimension remains in proportion - the size of the window frame may vary, but the shape (appearance) remains the same in a proportional relationship) unless there are clear issues with that interpretation or uncertainty as to what is being claimed.   

(c) the cross-sectional shape remains the same throughout, whether or not the dimensions of that shape vary according to a ratio or series of ratios

An example being:

• A tube where the cross-sectional shape remains the same, but the width and height of the tube varied along its length.

This differs from (a) in that there must be a constant cross-section remaining the same and there is no requirement for a repetitive pattern along the length.

(d) it has a pattern or ornamentation that repeats itself

This is intended to apply to textiles and other sheet material with a surface decoration that repeats. The representations must show at least one pattern repeat for this to apply.

Identifying an indefinite dimensions claim

A claim for indefinite dimensions is typically represented using break lines, but broken lines or jagged/zig zag lines could also be used. For example:

Break lines

Broken lines

Jagged lines

Zig zag lines

It should be obvious that this is the purpose of the line detail used. The product name and/or labelling could also be used to make it clear that a representation includes an indefinite dimensions claim.

Where this is not obvious it may be queried (see 7(15) of the Designs (Formal Requirements for Designs Documents) Instrument 2022), noting that line detail representing an indefinite dimension claim is not a visual feature. An indefinite dimension claim should also not be limited to identification in the Statement of Newness and Distinctiveness (SoND).

Indefinite dimensions and examination

An examiner will assess what attention a familiar person would pay to dimensions that are claimed as being indefinite. An indication of indefiniteness should itself not equate to a determination of newness and distinctiveness. Newness and distinctiveness inherently cannot reside in the relative size of an indefinite dimension. Indefinite dimensions and indefinitely repeating patterns are not considered visual features. The design as a whole needs to be considered as part of determining overall impression.

Where a representation purports to indicate indefiniteness, but the registration does not fit within the criteria of s 6(3), the thing is still a product capable of registration. However, the representation must be interpreted on the basis of the relevant dimension(s) not being indefinite.

​​​​​​​See Assessing newness and distinctiveness for more information on assessing products with indefinite dimensions.