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Nellie the Elephant packed her... ride-on suitcaseNellie the Elephant packed her... ride-on suitcase

» Posted on: 18 March 2014

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Dragon's Den loser, Rob Law, thought he was sitting pretty with his hugely successful design for ride-on suitcases for young children, particularly when Mr Justice Arnold ruled in the Patents Court in July 2013 that PMS International's "Kiddee Case" was an infringement of his company, Magmatic's, registered community design.

PMS had witnessed Magmatic's enormous success with its Trunki suitcase (in 2011, Magmatic estimated that 20% of all UK three to six year olds owned a Trunki) and sought to exploit a gap in the market for a discount version. Understandably, PMS was disappointed at the outcome of the case at first instance and launched an appeal.

PMS argued that the Judge had wrongly applied the principles relevant to the comparison of Magmatic's Community Registered Design with the alleged infringement and that aspects such as drafting conventions, colour and surface ornamentation should have been taken into account.

The Court of Appeal found that the overall impression created by the Trunki and the Kiddee Case is very different at both a general and a detailed level. The Judge failed to carry out a global comparison having regard to the nature of the community registered design and the fact that it was intended to create the impression of a horned animal. The colour contrast between the wheels and the body of the Trunki should have been taken into account and the Judge should have had in mind that the informed user (who does not merely perceive the design as a whole without details) is observant, has knowledge of the designs on the market and is able to carry out a direct comparison of the designs. For that reason, the Appeal was successful.

This important case highlights the fact that the detail of the representation of a design in the design application is crucial to the Court's analysis of whether a competitor's design infringes and that specialist advice should be sought when registered design applications are being considered.

For further information and advice on how best to protect your designs and other intellectual property rights, contact Tony Catterall, Head of Intellectual Property, on 01254 297900 or via email at tony.catterall@taylors.co.uk.

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