In this section, I am going to talk about whether a design patent can be infringed. The answer is yes, if the novel features of the patented design are similar to something else that is already covered by design patent.
There is a test that the US Patent Office and courts typically use to determine infringement of a particular design patent. That test is called the Gorham test. The test basically looks at the level of deceptive intent – which is whether the physical ornamental features are similar in nature enough to qualify as infringing on the design patent owner's rights. That is primarily the way infringement occurs. It is very limited in scope and it depends on the drawings. The drawings need to clearly show the distinctive features and the ornament in order to ensure against infringement.