A registered design buys you a finite head start, not a permanent moat. When it lapses, competitors are free — and, the law says, encouraged — to copy. The Federal Court’s decision in Bodum AG v H.A.G Import Corpn (Australia) Pty Ltd [2026] FCA 238 provides a good illustration.

Bodum’s double-walled glasses enjoyed a decade of design protection; once it expired, Maxwell & Williams openly copied the exact shape, admitted as much, and sold a near-identical product more cheaply. Bodum tried to stretch its protection through misleading-conduct and passing-off claims, and lost. The strategic reason matters more than the result: Bodum had never built a secondary reputation in the shape itself. Consumers recognised the BODUM word mark and logo — not the bare silhouette. Ironically, the strength of the brand undercut the claim. Buyers identified the product by the name on it, so a glass without that name read as “not Bodum,” not “a cheaper Bodum.” Deliberate copying, the Court confirmed, is not the same as an intention to deceive — and a strong rival brand plus clear labelling will usually defeat the claim.

For IP-intensive businesses, the lesson is about sequencing and evidence, not litigation. Treat every finite right — a design, a patent — as a window to build something durable, not as the protection itself. If a shape is commercially important, work deliberately to make it distinctive of you: promote the shape as a brand signifier, consider a shape trade mark (renewable indefinitely), and keep the proof — distribution figures, readership, campaigns that feature the shape without the logo.

Bodum’s marketing was extensive but unfocused: the glasses were two of more than twenty-five double-walled designs, rarely shown unbranded, and the evidence of standalone shape recognition simply wasn’t there. The disciplined move is to convert a temporary monopoly into lasting brand equity before the clock runs out — and to document that recognition as you go, so the get-up can carry its own weight when the registration can’t.

Full decision here: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2026/238.html