Enforcement
The effect of registration is to give you a monopoly on the design. It means that you can exclude everyone else from using that design. Put more technically, the effect of registration is:
- to grant to the proprietor;
- the right to exclude others;
- from making, importing, using or disposing of;
- any article included in the class in which the design is registered;
- embodying the registered design;
- or a design substantially the same.
Read section 20(1) of the Designs Act.
What to do if you are the registered proprietor and someone starts selling a product embodying your design, or one substantially the same? Well, this is infringement. Here is where almost the whole purpose and value of your design registration is realised.
Consult your patent attorney if you suspect that your design right is being infringed.
The Designs Act frames your registered protection in four slightly different ways. As we have seen, you have the right to prevent anyone else from doing any of the following:
- making any article;
- importing any article;
- using any article;
- disposing of (i.e. selling or distributing) any article,
if that article
- embodies the registered design, or a design not substantially different from the registered design; and
- is in the class in which your design is registered.
Generally speaking, most of these requisites are not difficult to establish. However, the question of whether the defendant’s design is substantially different from the registered design is not straightforward. A judge has to decide this and, as a human being, their opinion may differ from yours — or from that of another judge. Appeal courts exist because judges can make mistakes and get things wrong.