Did the Redberry Dress infringe the Design?
In order to establish whether the Redberry Dress had infringed the Design, her Honour was required to consider whether the Redberry dress was substantially similar in overall impression to the Design. Under section 19 of the Designs Act 2003 (Cth) (Act), Justice Kenny was required to consider the following factors by reference to the standard of the “informed user”: • the similarities and differences between the Design and the Redberry Dress (giving more weight to the similarities than the differences); • the state of development of the prior art base for the Design; • the freedom of the designer to innovate; • since only part of the Redberry Dress was substantially similar to the Design, have regard to the amount, quality and importance of that part in the context of the Design as a whole; and • as Review did not file a statement of newness and distinctiveness in respect of the Design, the Court was required to consider these factors having regard to the appearance of the Design as a
