Written by Corinne Day on 21 December 2009« Return to Reading Room
A proprietor of a design has an exclusive right over that design for a period of 25 years.
A third party will infringe a design if it makes, offers, puts on the market, imports or exports the design, or stocks the product for the above purposes.
If a potential infringer wishes to avoid infringing a design, it can contact the owner of the design to negotiate its use of the design. It may even be able to purchase the design from the proprietor.
If a third party is accused of design infringement that third party can invoke either one of the following defences:
- that there has been no infringement; and / or
- that the design is invalid. If the third party can successfully argue that the design should have never have been afforded design protection, because, for example, the design is not new or it has no individual character, then there will be no infringement.
Legal advice should be obtained if you suspect that a third party is infringing your design or if you are being accused of design infringement.
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