General Information for Clients DesignsA
design is an overall appearance of a product with one or more distinctive visual features. Visual features include shape, configuration, pattern and ornamentation of a product but not the feel of the product nor what the product is made from or how the product works.
The new Designs Act 2003 replaces the Designs Act 1906, providing Designers with an easier and more effective means of protecting industrial designs.
A significant change to the new Act is that the applicants have the choice of whether to publish or to register the design. Other significant changes include reduction of the registration from 16 years to 10 years, and substantive examination will occur post registration and only upon request.
New Distinctiveness and Infringement TestsThe old Act tests for a "new and distinctive" design and for infringement of a design registration have been replaced by a unified "similarity of overall impression" test.
In applying this new test, focus has shifted to similarities rather than differences and regard is to be taken of the state of the prior art base at the priority date, any features mentioned in a statement of newness and distinctiveness and the freedom of the designer to innovate. If only part of the design is similar to the prior art, regard must be had to the amount, quality and importance of that part to the design as a whole.