DESIGNS ACT 2003 - SECT 19 Factors to be considered in assessing substantial similarity in overall impression

DESIGNS ACT 2003 - SECT 19

  (1)   If a person is required by this Act to decide whether a design is substantially similar in overall impression to another design, the person making the decision is to give more weight to similarities between the designs than to differences between them.

  (2)   The person must also:

  (a)   have regard to the state of development of the prior art base for the design; and

  (b)   if the design application in which the design was disclosed included a statement (a statement of newness and distinctiveness ) identifying particular visual features of the design as new and distinctive:

  (i)   have particular regard to those features; and

  (ii)   if those features relate to only part of the design--have particular regard to that part of the design, but in the context of the design as a whole; and

  (c)   if only part of the design is substantially similar to another design, have regard to the amount, quality and importance of that part   in the context of the design as a whole; and

  (d)   have regard to the freedom of the creator of the design to innovate.

  (3)   If the design application in which the design was disclosed did not include a statement of newness and distinctiveness in respect of particular visual features of the design, the person must have regard to the appearance of the design as a whole.

  (4)   In applying subsections   (1), (2) and (3), the person must apply the standard of a person (the familiar person ) who is familiar with the product to which the design relates, or products similar to the product to which the design relates (whether or not the familiar person is a user of the product to which the design relates or of products similar to the product to which the design relates).

  (5)   In this section, a reference to a person includes a reference to a court.