Designs Law and Practice
Registrability
A design protects the visual appearance of a product - its shape, configuration, pattern or ornamentation. It must be new and distinctive compared with the prior art base. Candidates must distinguish designs from patents: a design protects appearance, not function.
The prior art base and the informed user
Novelty and distinctiveness are assessed from the perspective of the informed user, considering the design as a whole. Traps: dissecting the design into features instead of comparing overall impression; ignoring that functional features may be disregarded; and forgetting that publication before filing destroys novelty unless an exception applies.
Infringement and defences
Infringement requires a substantially similar overall impression. Defences include use for private purposes, experimental use, and prior use. Candidates should know that a design may be invalidated by prior publication or by a conflicting earlier design.
Overlap with copyright and patents
A product may attract design, copyright, and patent protection simultaneously, but each has different tests. Traps: assuming a registered design blocks all functional equivalents; and assuming copyright in drawings automatically protects the three-dimensional product.
Worked example
A chair has a distinctive curved back. A competitor sells a chair with the same curve but a different leg arrangement. The comparison is of the overall impression on the informed user, not a feature-by-feature checklist. Rule of thumb: compare whole designs, not isolated integers.