13.6. Assessing newness and distinctiveness: Substantially similar in overall impression

Date Published


The Macquarie Dictionary defines ‘impression’ (in the context as used in the Act) as:

  1. a strong effect produced on the intellect, feelings or conscience
  2. the first and immediate effect upon the mind in outward and inward perception
  3. the effect produced by an agency or influence
  4. a notion, remembrance or belief, often one that is vague or indistinct

It follows that ‘impression’ in s 16(2) and s 19 entails an assessment of the appearance of a product that does not involve an analysis of the small details of its appearance.

However, the assessment is based on the standard of the familiar person / informed user (s 19(4)). This means that the relevant impression is that gained by the familiar person / informed user – not that gained by an uninformed casual glance at the product. The familiar person / informed user may often have particular interests in certain aspects of a product, so their attention is preferentially directed to those aspects. That is, the impression will depend on the relative significance the familiar person / informed user places on the various features.

Overall impression

The reference to overall impression requires consideration of the product as a whole, not just the part of the product where the particular visual features of the design are located. For example, a change of detail in a small visual feature on a large product might have no effect on the overall appearance of the design, resulting in a substantially similar overall impression.


The test of ‘impression’ recognises that differences in detail can exist if they do not affect the overall impression. However the use of ‘similar’ indicates that a strictly identical impression is not required – similarity of impression is sufficient.


Substantially similar

However, mere similarity is not sufficient – there must be substantial similarity. That is, there must be ample commonality in the overall impression.

Amended Reasons

Amended Reason Date Amended
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