How to Challenge a Registered Design
Written by Michael Coyle on 19 October 2007« Return to Reading Room
How to challenge a Registered Design?
You need to establish that it is common place
The test was first formulated in the Farmers Guild case.
Compare the design with the design of other articles in the same field
Has the design simply been copied from an earlier article
If it has not been copied, is it original? The court then needs to consider whether it is commonplace. This requires comparison of the design for similarity with the design for similar articles in the same field of design made by persons unconnected with the parties.
The comparison must be conducted objectively and in the light of the evidence,including experts in the relevant field pointing out the similarities and differences and explaining the importance of them.The closer the similarity of various designs to each other the more likely it is that they are commonplace
If there are aspects of the design in question which are not found to be in any other design in the relevant field, that is indicative that the design is not commonplace.
The test for whether or not it is commonplace has to be judged at the time of the creation of the design and NO later.
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