Infringement must be present:
According to s 226(1)-(2) of the Copyrights, Designs and Patents Act 1988 (CPDA), Primary Infringement of Unregistered Design Rights takes place where a person replicates or authorises a third party to replicate the designs for commercial purposes by making:
a) Articles exactly or substantially to the design, or
b) A design document recording the design to enable such articles to be made.
According to s 262(3) CPDA ‘for commercial purposes’ means with a view to sale or hire of the article in the course of a business.
There are 2 classes of primary infringement.
1 Making Class:
A primary infringement occurs if an article is made exactly or substantially to the design, looking at the design as a whole.
It is important to establish the degree of similarity in the case of substantial reproduction. This has to be determined both visually and objectively by reference to consumer opinion. If a design has been created independently UDR is not infringed. It is at the discretion of the courts to evaluate the similarities and differences between designs, expert evidence can be submitted in your favor.
In addition, infringement can also occur where part of a design is copied, and that part is protected by UDR.
2 Document Class:
A defendant need not have made articles to the design. A claimant needs to prove that it was the defendant’s motive to simply make a design document for the purpose of enabling articles to be copied to the design.
According to s 227(1) secondary infringement of UDR consists of the ‘unauthorised:
a) Commercial importation into the UK, or
b) Commercial possession, or
c) Sale or hire (or offering or exposing for sale or hire) in the course of a business, …of an article that the infringer knows (or has reason to believe) is an infringing article.’
Here the objective test is used.