10.4. Product: Things that are not different products

Date Published

A thing does not become a different product just because:

  • it is being sold for a different purpose from an identical product
  • it has a different name from an identical product
  • it has a different chemical composition from an identical product
  • it is in a different size from an identical product.

It is the overall impression of the designs and not what the product name suggests that is being considered when determining whether a design is new and distinctive.

Sold for a different purpose

Two identical items are not different products merely because the descriptions of use are different. For example, if examination takes place, the fact that the subject design is not called a toothbrush does not mean that an earlier (identical) toothbrush is not citeable art.

Has a different name

Products may not be different based on packaging or naming. For example, a manufacturing plant is producing an object and every second object is packaged with a different label, description or statement of use. That packaging or labelling does not convert the identical objects into different products.

Has a different chemical composition

A product is given design protection for its appearance, not its chemical composition.

For example, 2 pharmaceutical tablets have the same appearance. One tablet contains aspirin. The other tablet contains codeine.

The chemical composition has no direct or indirect effect on the appearance of the product.

If the differences in the composition of the 2 tablets caused them to have a different visual appearance – for example, it makes them have different colours – this may result in the designs not being substantially similar in overall impression on the basis that the colour is a visual feature that results in distinctiveness.

In a different size

Two identical products whose dimensions are in the same proportion are not necessarily different things just because they are identified as being different sizes. A design is not considered to be new and distinctive compared to another identical design based on product names that suggest a different size and overall shape. For example, if a registered design with the name ‘medium sized shirt’ is being examined and the representations are identical to a previously submitted registered design with the name ‘XXL shirt’, the XXL shirt should be considered a citation.

Amended Reasons

Amended Reason Date Amended
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