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One of the important advantages of obtaining an industrial design registration is that it can be protected through an action for infringement without showing secondary meaning or goodwill associated with the design. In most actions for trade mark infringement or passing off it is critical to establish the existence of goodwill.
In addition, it is clear that registration as an industrial design does not prevent the subsequent registration of a distinguishing guise under the Trade-marks Act relating to the product to which the design is applied. This means that a brand owner can use an industrial design registration to protect the shape and appearance of a product initially and after goodwill has been established obtain a distinguishing guise registration. Trade mark registrations can be renewed indefinitely but the term of an industrial design registration is 10 years.
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