9.1. Identifying the design: overview

Date Published

Key legislation in this topic: Designs Act: ss 5, 7

Key related topics: Representations, Section 19 requirements for distinctiveness

The definition of ‘design’ under s 5 of the Designs Act is:

design, in relation to a product, means the overall appearance of the product resulting from one or more visual features of the product.

A design therefore exists only in relation to the product it is applied to.

The task of identifying the design that is the subject of an application or registration involves interpreting the representations and other material in the application to:

Overall appearance

The overall appearance of a product (also referred to as the ‘subject matter’ of the design) is the appearance created collectively by all the visual features of the design.

Visual features

The Designs Act definition of a ‘visual feature’ is in 3 parts:

  • a visual feature includes the shape, configuration, pattern and ornamentation of the product
  • a visual feature may, but need not, serve a functional purpose
  • some aspects of a design cannot be classed as visual features.

This is an inclusive definition – i.e. anything that can be properly described as a ‘visual feature’ is included.​​​​​​

Effect of other designs on interpretation

Each design must be assessed independently of any other designs. Therefore in identifying the design, we cannot consider any other designs – even if the owner has also applied for (or already registered) similar designs for the same and slightly similar products.

However, see Designs disclosed in applications for information on when a design is taken to have been disclosed in another application or registration.

Amended Reasons

Amended Reason Date Amended
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