9.5. Identifying the design: What cannot be a visual feature

Date Published

The following aspects are not visual features of a product (s 7(3)):

  • the feel of the product
  • the materials used in the product
  • where a product has one or more indefinite dimensions:
  • the indefinite dimension
  • more than one repeat of the pattern (if the product has a pattern that repeats itself).

Feel

The feel of the surface of a product – for example, a texture, tactility, smoothness/grip, hot/coldness – cannot be a visual feature. But the surface finish applied to a product that results in a certain feel can affect the visual appearance of a product. That appearance is protectable.


Materials

Materials used in a product are usually not protected. But if the materials used in a product give it a particular visual appearance, that appearance can be protected.


Indefinite dimensions and patterns

Indefinite dimensions and indefinitely repeating patterns are not considered visual features.


Indefinite dimensions

For example, in a design for a bottle where the mid-section of the bottle is an indefinite length (i.e. indefinite dimension), the length of the mid-section is not a visual feature of the design. This means the design would not be considered new and distinctive compared to a bottle with the same visual features but with a mid-section of a fixed length.

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Repeating patterns

Where there is a repeating pattern, a single base unit of the pattern is a visual feature but an indefinite number of repeats is not a visual feature. If the base unit of the pattern has an indefinite dimension (e.g. a pattern of stripes) its indefinite dimension is not a visual feature.

If there is a repeating pattern on an indefinite dimension:

  • a single fixed unit of that pattern is a visual feature
  • the number of times the pattern repeats is not a visual feature.

If the pattern is on more than one indefinite dimension:

  • a single fixed unit of that pattern is a visual feature
  • the fact that the pattern repeats on both dimensions is a visual feature
  • the number of times it repeats on those dimensions is not a visual feature.
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If the pattern repeats on a dimension (or dimensions) with a fixed length/width:​​​

  • a single fixed unit of that pattern is a visual feature
  • the number of repeats is a visual feature, on the basis that there is a set end point.

Amended Reasons

Amended Reason Date Amended