The moment you publish your website, it becomes visible and everyone can marvel at your design ideas. But just like all other ideas out there, it falls under certain intellectual property rights. While a chair is still a chair because of its purpose, the ornamentation, pattern, and shape make it unique to a certain designer. Based on the World Intellectual Property Organisation, “A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application.” Under the Design Act 2003 of Australia, “design, in relation to a product, means the overall appearance of the product resulting from one or more visual features of the product.” In both cases, the term refers to a certain registered idea which if copied without permission or signed by any other person than the patent holder is to be considered an infringement.
Design patents are nothing new, but their value was not always perceived as it is today. With the development of communication, newly developed ideas were presented more easily and in a faster way. Everyone can show their work to the world, which started a global who-made-it-first race.
What is an infringement?
However, even with these measures, a third party may steal your idea and incorporate it in their own. Design patent infringement is sometimes a real challenge to prove since you have to make a strong case against the third party. In order to prove that someone stole your idea, you have to be able to find the similarities between your own and the other person’s design.
Based on the Australian Design Act 2003 “a person infringes a registered design if, without the appropriate authority, the person deals in certain ways with a product that embodies the design, or a design that is substantially similar to it.”
How to prove an infringement?
Proving a design patent infringement will need to concentrate on three characteristics. These are the scope of protection, importance of the patent for the entire product, and its uniqueness. As a registered owner, you can accuse a person of alleged infringing of your design. You have to be able to do so before taking any legal action.
The things you will have to prove are that the registration of your design patent is still valid, as well as that you are the owner of said rights. Additionally, you have to be able to show that the alleged infringer’s product is partly or wholly a copy of yours. And lastly, you must make a statement that they used your design patent without your knowledge, license or agreement.
Proving your registration is valid
Intellectual property rights don’t last forever and are limited to a certain period of time. As such, they have an expiry date and, when that happens, anyone can use your design for their purposes free of charge. Until then, you have to be able to prove that you actually have registered rights to a particular design patent. If the rights exist, then the claim can be presented and treated as design patent infringement.
Proving the ownership
Infringement proceedings are valid only when the owner or person authorized by the owner raise the issue of violation of the rights. If the rights are registered, proving the ownership is easy and unquestionable.
However, there are cases when someone other than the registered owner launches the proceedings claiming that they are the original owner. In order to prove these claims, the person has to show proof in the form of written, video and other materials.
In order to prove design patent infringement, you will have to prove that your work was copied in the alleged infringer’s product, partially or completely. Some illegal copying will be easy to prove based on the visual inspection. However, there are occasions when that is not so simple. This is mostly the case with more complex design patents. This is when expert assistance is valuable for resolving the issue.
Proving the permission for use
Since you can authorize other persons or organizations to use your design patent, you have to prove that in the case of this claim you didn’t give such right to the alleged infringer. This is why a good administration system can save you. For example, if you have a procedure for issuing licenses to third parties, you can prove that such a document wasn’t granted to the infringer.
Hire legal and other expert help
Seek advice from a local patent attorney where you registered your patent. Since the proceedings will most certainly happen in the city where you registered your design you will need an expert’s help to handle the legal aspects of the case.
You can additionally hire an appraiser to any other appropriately competent person to prove your claims before a court. If you decide to use mediation, you will still need to present firm evidence that the alleged infringer is actually the culprit.
Infringement is an important issue, especially to small businesses and innovators who try to make their big mark on the global market. Registering their design patent may be the only way to ensure their success and further development.
Design patent infringement is an illegal action and is prohibited by the law. It is also something that can happen unintentionally, although mostly that is not the case. The legal framework protects the owners, but it’s also their responsibility to make it a known fact that they own the rights. Also, they have to be very clear that any illegal and unauthorized use will be pursued before a court.
About the Author:
David Koller is a passionate blogger and copywriter for Media Gurus, mainly interested in SEO and Digital Marketing.