9.3. Identifying the design: Visual features

Section 7 indicates what is and what is not considered a visual feature of a product. Any characteristic can be a ‘visual feature’ as long as it is not excluded by s 7(3). It is important to note that a design relates to the ‘look’ of a product, not the ‘feel’ of a product.

Features that are considered visual features include:

• shape, configuration, pattern and orientation
• colour
• texture and surface finish, to the extent that they are visible.

Most visual features are relatively straightforward to identify. Elements that may be more complex are:

• variable features, including those that are different when the product is in use versus ‘at rest’
• internal features
• features with a functional purpose.

Features that are not considered visual features (s 7(3)) are:

• the feel of the product
• the materials used in the product
• if the product has any indefinite dimensions, the concept of the indefinite dimension itself and, if applicable, the repeat of a pattern on that dimension.

Shape, configuration, pattern and ornamentation

The visual qualities of a product are usually made up of its shape, configuration, pattern and ornamentation.

We do not need to decide whether a visual feature can be described as a shape, a configuration, a pattern or an ornamentation. Something is a visual feature if it can be described as being any one of shape, configuration, pattern or ornamentation.

Colour

Colour is not specifically referred to in s 7 as a visual feature. However, there is little doubt that colour is a visual feature (see the Government response to recommendation 8 of the Designs ALRC Report 74).

The practical issue is the effect of colour when assessing distinctiveness. See Assessing newness and distinctiveness for more information.

Colour in representations

There are specific issues with assessing the significance of colour in the representations of a design. See Representations for more information.

Internal features

Features that are not visible when a product is being used can also be ‘visual features’ and contribute to the overall appearance. This however assumes the internal features are visual features and not other types of features (e.g. tactile features, materials of construction). It does not matter that the visual features are not normally visible in normal use.

While an internal feature may be considered a ‘visual feature’, the fact that it is internal to the product has a bearing on its significance to a familiar person / informed user as part of the assessment of distinctiveness. See Assessing newness and distinctiveness for more information.​​​

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Functional purpose

A visual feature can serve a functional purpose, but it does not need to (s 7(2)).

The shape of a product is often dictated by a functional purpose. For example, the spout of a water jug might have a particular shape to prevent the water from dribbling when pouring. The fact that a visual feature has a functional purpose, or has an appearance that is entirely dictated by a functional purpose, is irrelevant to the question of whether that feature is a visual feature of the design.

We need to draw a distinction between a specific shape that has a functional purpose, and a principle of design to meet a functional purpose (see Firmagroup Australia Pty Ltd v Byrne & Davidson Doors (Vic) Pty Ltd (1987) 180 CLR 483, 487). A visual feature is not defined or understood by its purpose.

The representations for a design need to show a specific visual appearance of the product. They cannot show a variety of different appearances that match a particular function or functions that the product may have.

If a product has a visual feature that is displayed in a variety of different appearances in the representations, the conclusion will usually be either:

• The application contains more than one design – each design corresponds to each of the individual appearances of the feature.
• The fact that there are multiple appearances of the particular feature is only consistent with that feature being one of the generic features of the product, not a visual feature of the design. (That is, distinctiveness of the design cannot result from that feature.)

The most appropriate form of protection for a design that has a functional purpose is a patent.