3.5 Enforcing Industrial Design: Design Infringement Claims, Defenses andRemedies in Design Infringement

The infringement's test: the overall-impression-and-substantial-identity — the informed- observer's eye: would the article's look deceive-or-confuse (the "ordinary observer" test of the comparative lore — the differences measured against the design's substance, not its trivia); the identical-or-similar articles' scope (the same-or-related product classes); the Nepali Act's fraudulent-or-obvious imitation faces. The defences: (1) the invalidity's attack (the novelty's absence — the prior-design's-and-the-common-heritage's proof); (2) the functionality's bar (the features dictated by the technical function — the monopoly-by-design-on-the-machine's prevention); (3) the repair-complex-product exception (the spare parts' faces of the comparative lore); (4) the licence, the exhaustion and the prior-use pleas (the U2.5's parallels). The remedies: the injunction (interim-and-permanent), the damages-or-account-of-profits, the infringing-goods'-and-implements' seizure-and-destruction, the border measures, and the costs — the standard IP machinery applied to the design's eye.