A similar product does not automatically infringe a design right. The assessment starts with the protected representations, the right's validity and the overall impression on the informed user.
This article was first published on the date shown above and has been revised to reflect current terminology and practice.
Compare the right, not just the marketed product
Identify the territory, filing or priority date, current status and the views in the registration. The comparison concerns those representations and the challenged product. Features dictated solely by technical function and the designer's freedom can materially affect the analysis. For an unregistered EU design, copying must also be established.
Separate infringement from validity
An accused supplier may rely on an earlier catalogue, trade fair exhibit or online publication to challenge novelty or individual character. A registration certificate is not a judicial finding that the design is valid. An invalidity argument and an infringement defence answer different questions and may need different procedures.
Three common disputes
A furniture maker discovers a similar chair: compare the significant visible features and the existing design corpus. A retailer receives a warning about imported lighting: check the registration, stock, supplier documents and deadline before giving an undertaking. A fashion label relies on an unregistered collection: preserve the first disclosure and evidence that the alleged copyist had access.
Choosing a proportionate response
Evidence preservation, correspondence, interim relief, a main action and settlement each serve different purposes. There is no guaranteed injunction or damages award. Territory, urgency, validity, proportionality and the evidence determine the available remedies.
Related service and practical guidance
Identify what the registration actually shows
The rights holder’s marketed product may have changed since filing. Begin with the registered representations and any limitations of the claim. Compare the accused product from the relevant angles, using a physical sample where online images are incomplete. A legal assessment based only on a front-view advertising photograph can miss features that materially affect the overall impression.
Investigate the earlier design field
The context of earlier designs can affect both validity and the infringement assessment. Preserve relevant dated material and distinguish a challenge to the right from an argument that the accused product falls outside its scope. Independent creation is not by itself a complete defence to registered-design infringement. Unregistered rights raise a different question because copying can be central.
Turn the assessment into a commercial decision
Identify the person responsible for the relevant acts and the country in which they occur. Consider evidence, urgency, likely remedies, costs and the risk of a validity challenge before sending a demand. A settlement should identify the affected products and future conduct precisely. If proceedings are necessary, the evidence file should already connect the product, seller and transaction rather than leave those facts to later reconstruction.
Compare national design law · Representations and partial designs · Procedures and appeals