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Short essay on the infringement of copyright (Design)

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(a) For the purpose of sale to apply or cause to be applied to any article in any class of articles in which the design is registered, the design or any fraudulent or obvious imitation thereof, except with the license or written consent of the registered proprietor, or to do anything with a view to enable the design to be so applied; or

(b) To import for the purposes of sale, without the consent of the registered proprietor, any article belonging to the class in which the design has been registered, and having applied to it the design or any fraudulent or obvious imitation thereof, or

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(c) Knowing that the design or any fraudulent or obvious imitation thereof has been applied to any article in any class of articles in which the design is registered without the consent of the registered proprietor, to publish or expose or cause to be published or exposed for sale that article.

A distinction is made between ‘fraudulent’ and ‘obvious’ imitation. In both cases the design applied must be an imitation of the registered design. In the case of fraudulent imitation, the imitation need not be obvious.

It is sufficient if it is fraudulent, that is to say, the imitation has been made with the intention to deceive another person with the knowledge that what is being done is a violation of the other person’s rights.

In the case of an obvious imitation the limited article must be very much closer to the genuine article than the merely imitated article. The test of determining whether the design is an imitation is for the eye because the finished article bearing the design must appeal to and is solely judged by the eye.

In deciding whether the defendant’s article is an infringement of the registered design one has to consider the essential features of the registered design and the scope of its monopoly.

The task of the judge is to look at the two articles, to observe their similarities and differences, to see them together and separately, and to bear in mind that in the end the question whether or not the design of the defendant’s article is substantially different from that of the plaintiff is to be answered by consideration of the respective designs as a whole, and viewed through the eyes of a consumer or customer.

The degree of novelty in the registered design must be considered. The statement of novelty in the registered design and the state of knowledge at the date of the registration must be taken into account.

Copying is not a criterion for determining infringement as in the case of infringement under the Copyright Act. Independently conceived designs can also be an infringement of the registered design.

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