To examine whether a design is ‘commonplace’, the test is as follows. If a design is ‘commonplace’ then the owner of that design should not be able to prevent other traders from also using the design, and it should not be legally protected.
1)Compare the design with the design of other articles in the same field.
2)Has the design simply been copied from the design of an earlier article?
3)If it has not been copied, it is original. But the Court must also consider if it is commonplace. This requires comparison of the design for similarity with the design for similar articles in the same field of design made by persons unconnected with the parties.
4)The comparison must be conducted objectively and in the light of the evidence, including experts in the relevant field pointing out the similarities and differences and explaining the importance of them. The closer the similarity of various designs to each other the more likely it is that they are commonplace.
5)If there are aspects of the design in question which are not found to be in any other design in the relevant field, that is suggestive that the design is not commonplace.