Fraudulent Imitation Need not be Disguised: Polyaire Pty Ltd v K-Aire Pty Ltd

If you hold a registered design under the old design registration system, a recent Australian High Court decision indicates that you may be entitled to greater protection than previously thought. The Australian High Court’s decision in Polyaire Pty Ltd v K-Aire Pty Ltd [2005] HCA 32 on 16 June 2005 clarifies that an infringement action for fraudulent imitation of a registered design need not establish that changes made to that design are for the purposes of dishonest disguise of the design. The decision reversed the Full Federal Court finding on this point.

This means that in considering a fraudulent imitation infringement claim the court must focus on whether or not a designer knew or is likely to have knowledge of a registered design and whether or not the second design is an imitation. The court does not need to consider whether or not differences between designs are intended to disguise the infringement. This more relaxed approach appears to be closer to the new broader