Current.com.au welcomes Lester Miller, an experienced intellectual property attorney, to our stable of contributors. Miller will be posting stories focused on design, intellectual property, trademarks, patents and other curiosities from his industry.

By Lester Miller

Designers will know all 10 of Dieter Rams' principles of good design, and may even settle on one being more important than the others; the title of his book: as little design as possible.

In 2010, the world’s foremost Rams adherent, Sir Jony Ive, and his 14-strong team at Apple simplified the design of their 2008 LED Cinema Display. The designs were identical in every way except one: the glass on the later model was extended to the front face edges so that rather than an aluminium-rimmed screen, the screen's front face presented to the user a flat plate of glass.

As Rams would say, ‘less, but better’:

2008 Apple LED display.

2010 Apple LED display.

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Apple sought to register the design of the 2010 model. The Designs Examiner at IP Australia refused monopoly protection, citing the 2008 model. 

Registered designs protect the appearance of distinctive products. With the latest designs law, the scope of registrations is supposed to be broader, since the similarities between designs must be given more weight than any differences.

It doesn't always work in practise since some factors, including freedom of the designer, have to be taken into account, but the product has to make an overall impression that is not the same as another product before a registered design can be certified.

Apple requested a hearing but couldn't take a trick, and even scored an own goal or two.

First, the Hearing Officer was faintly critical of Apple's overstatement of the one difference between the designs, which was put four different ways.

Second, the design differences were hard to see, but magnified pictures were disallowed.

Third, Apple's own submissions, as well as the evidence of its expert, were ultimately used against it: interestingly, for a design-focused company, both indicated that most informed users of electronic devices were more interested in technical specifications than appearance.

Fourth, the Hearing Officer's own enquiries on at least technology media websites fatally reinforced the specification-over-form view of informed tech users, since she couldn't find anyone that even noticed the improved rimless form of the display.

The 2010 display was found to be substantially similar in overall impression to its predecessor and the registered design was revoked.

Conclusion

A broader standard for design protection against potential copiers means that a first model may deprive the second of protection. In such a situation, you could simply rely on design protection for your first model, but there is no record on IP Australia’s database of Apple's design protection in Australia for the first 2008 LED Cinema Display model.

Lester Miller is a senior associate and patent and trademarks attorney at Allens.