According to the general standard, a design patent is infringed if an ordinary observer would think that an allegedly infringing design is substantially the same as or similar to that of the patented design in overall outer appearance. While such standard is clear-cut and universal, it is worth noting how it has been implemented and enforced in Taiwan.
Taiwan’s IP Court recently ruled in favor of the defendant in an infringement lawsuit filed by the owner of a design patent for a balance ramp. The patented balance ramp is a one-piece integrally formed rigid structure used for balance training. The body of the ramp is in the shape of an elongated, slender trapezoid and has a right side portion and a left side portion that differ in length and slope gradient. The middle portion of the ramp body, on the other hand, has a flat surface. The body of the allegedly infringing balance ramp, though likewise in the shape of an elongated, slender trapezoid, is not integrally formed but instead consists of three distinct components which include two side portions having the same length and same slope gradient, and a middle platform portion.
The Judge held that, in the “Test for Similarity”, effort should be made to determine which parts of the outer appearance of a design are most striking to the eye of an ordinary observer, and then evaluate whether these parts collectively create an overall visual effect over the other design, thus precluding confusion. On this score, the Judge selected the right and left side portions of the two balance ramp bodies and the way the ramp bodies are formed as the most salient aspects for comparison. Although the shape of the two balance ramps is more or less dictated by their common function and intended use, the Judge opined that the two balance ramps could create different overall impressions upon an ordinary observer as a result of their easily noticeable dissimilar parts. The defendant was thus not found liable for infringement.
As a general rule, in the “Test for Similarity”, the two designs concerned should be compared in their overall appearance to determine whether a design may yield an eye-appealing aesthetic effect over the other. The balance ramp case above further suggests that a part of a design may come to play a significant role if it is pronounced and prominent enough to discern between two designs.