Registered Design Infringement and Remedies

There is no question of knowledge or intention about the infringement of a registered design. The fact of registration gives notice to all, regardless of knowledge. Knowledge only becomes relevant when considering what remedies are available. The registration of a design gives the registered proprietor the exclusive right to use the design and ‘any design which does not produce on the informed user a different overall impression.’ ‘Using’ the design means the making, offering, putting on the market, importing, exporting or using of a product in which the design is incorporated or to which it is applied

Infringement is defined as anything that is the exclusive right of the proprietor without its consent. The exceptions to this are: an act which is done privately and for purposes which are not commercial; an act which is done for experimental purposes; and an act of reproduction for teaching purposes. There is also no infringement if the act of reproduction is compatible with fair trade practice and does not unduly prejudice the normal exploitation of the design and mention is made of the source.

If an infringement of a registered design occurs damages may be awarded. However, damages may not be awarded to an innocent infringer. It is not enough to mark a design with the word ‘registered’ to overcome this; but the registration number of the design must be marked on the product. Apart from this concession to a lack of awareness, the rest of the remedies are available without regard to knowledge of infringement. Remedies can include: an injunction; damages; an account of profits and an order for delivery up or destruction of the infringing items.

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