Design Rights

What are Design Rights?

Design rights protect the visual appearance and aesthetics of a product, including its shape, configuration, pattern, and ornamentation. These rights help creators and businesses safeguard the unique look of their products and prevent others from copying or imitating the design without permission. 

Once established, design rights give the owner the exclusive right to:

  • Reproduce the design for commercial purposes;
  • Make, offer, or put on the market products featuring the design;
  • Import or export products featuring the design;
  • License others to use the design; and
  • Prevent unauthorised copying or use of the design. 

What is Design Right Infringement?

Design right infringement occurs when a party, without the owner’s consent, copies or uses all or a substantial part of a protected design in the course of business. This can include:

  • Direct copying of the design;
  • Producing products that are substantially similar in appearance; and
  • Importing, selling, or distributing infringing products.

What are the Remedies for Design Right Infringement?

Courts may grant injunctions to stop the infringing activity, order the delivery up or destruction of infringing products, and award damages or an account of profits to compensate for any financial loss suffered by the design right owner. 

The infringer may also be required to pay the legal costs incurred by the owner in bringing the claim, particularly if the claim is successful. 

What are the Defences to Design Right Infringement?

There are various defences that a party can assert if accused of design right infringement. The most significant include:

  • The design is not original or does not qualify for protection;
  • The alleged act does not involve copying;  
  • The design right has expired;
  • Use for private and non-commercial purposes; and
  • Use for experimental or teaching purposes.
How can Samuels help?

If infringement has taken place, it is important to act as quickly as possible, to protect your design rights. Our experienced team can assist by preparing formal letters of claim to demand that any infringement ceases, applying for injunctions to stop ongoing infringement, and pursuing claims for damages to recover losses.

If you have been accused of infringement, our team can assist by preparing a letter of response, engaging in settlement discussions, and defending any court proceedings.

Contact us today to speak to one of our lawyers about how we can help.