9.2. Identifying the design: Overall appearance

Date Published

The “overall appearance” of a product (effectively the subject matter of the design) is the result of one or more visual features (s 5).

A design right is not based on overall appearance of the product as such – it is based on the overall appearance that results from a visual feature or features.

Where the representation(s) identify all visual features as forming part of the design being applied for, the overall appearance of the product equates to ‘the overall appearance resulting from one or more visual features’. For example (Design 202011431 (coffee maker)):​​​​​​​

Where the representation(s) purposely identify and highlight visual features, applied to a product that has other visual (including generic) features, the design right does not equate to the overall appearance of the product. Instead, the contribution the highlighted visual features have as part of forming a view on what is the overall appearance is relevant. The influence or impact these visual features have on the overall appearance when compared to the other features that together form the product bearing the design is important to understand.

It is common for a design to focus on a visual feature (or group of visual features) amongst other features that make up the product. For example in  Design 201814169 (wheel), the parts that make up the outer portion have been identified and highlighted (in solid line) as visual features the subject of the design. See below:

Features of a product that are not visual features the focus of the design right will typically be identified in some generic fashion – such as by the use of dotted lines (see directly above). Clear labelling of representations also assists in understanding what is the design being applied for. The features in dotted lines are generic features of the product bearing the design. These features can help identify what is the overall appearance of the product resulting from the visual features that form the basis of the design. See Representations for more information.

Representations may include extraneous elements that are not part of the design, added for reference. A typical example is a representation that shows the product bearing the design in use, or in its environment. Labelling is important and should be used to clarify the relevance of what a representation shows, and what does and does not contribute to the overall appearance and the design. Part of the task of identifying the design is interpreting the representations and other material in the Register entry to establish whether any elements are being disclaimed or clearly do not form part of the design right.

In Review No 2 v Redberry Enterprises [2008] FCA 1588 a representation of the garment design showed it on a store mannequin. There was no suggestion that the mannequin formed part of the design, and at [52] it was stated:

… everything that is shown in the registered design (unless disclaimed in some way) forms part of the subject matter protected by registration.​​​​​​

Overall appearance versus overall impression

When determining the subject matter of a design, we are assessing visual features and their influence on what is the overall appearance of the product. However, when determining the newness and distinctiveness of a design, we are assessing the design’s overall impression. These 2 concepts are different.

The overall appearance of the product is made up of all the product’s visual features. Overall appearance is relevant to understanding the scope of the design.

However, a design right allows for visual features to be emphasised as being new and distinctive and the focus of the design being applied for. This will be highlighted in the representations and may be referred to in a statement of newness and distinctiveness.

The design relates to these particular visual feature(s) of a product that may have other features.

So we need to bear in mind that the design is not the overall appearance of the product – it is the overall appearance of the product that results from particular visual feature(s).

For details, see Section 19 requirements for distinctiveness.

Amended Reasons

Amended Reason Date Amended

Minor clarification.

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