Originally Published February 2009
Our Designs Act was substantially reviewed in 2003 to try to broaden the protection available to applicants.
The recent case of Review 2 Pty Ltd v Redberry Enterprises Pty Ltd [2008] FCA 1588 reminds us that the attempt to broaden the protection may not have been that successful.
Under the new Designs Act, infringement occurs if the infringing article is substantially similar in overall impression to the registered design. The overall impression is considered by reference to the "informed user".
In considering the application of these principles in an alleged infringement for a dress, the Judge resorted to the same notions that permeated the previous legislation in defining nebulous visual features of the two dresses. In the end, the Judge held that the notional "informed user" would conclude that the differences in shape, pattern and colour of the dresses would produce a different overall impression. Hence, although the design was valid, it was not infringed. Interestingly, the Judge also commented that copying of ideas was something common to fashion designers!
The overall impression is that the legislative attempt to broaden design protection in Australia may have been thwarted in this instance, with yet another decision holding that the design registration is valid but not infringed. This is a problem that plagued our previous Act.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
