Crucial terms and references Invalidity, New, Individual Character and Informed user?
- How do you go about declaring a registered design invalid?
Section 11ZA of the Act provides the capability for a registered design to be invalidated under section 1B of the Act on the ground that it was not new or that it did not have individual character at the relevant date.
Section 1B reads:
“(1) A design shall be protected by a right in a registered design to the extent that the design is new and has individual character.
- What does New mean?
A design is new if no identical design whose features differ only in immaterial details has been made available to the public before the relevant date.
- What does individual character mean?
if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public before the relevant date
- Who is an informed user?
Say it’s a design for a dog lead. The informed user of dog leads is a consumer such as a dog owner, dog-walker or someone who cares for dogs. The informed user is not an ‘average’ consumer but is someone who will have an interest in leads. However, they will not examine the design with forensic attention to detail. In terms of pattern and decoration the designer of dog leads will have considerable freedom. There are more restrictions when one considers the practical elements of the design. There must be a way of attaching the lead to the dog’s collar or harness and there must be a way for the person walking the dog to keep firm hold of the lead. However, there are a number of design variations possible which will satisfy these requirements. Overall, there is a reasonable degree of design freedom.