PMS International Cow Kiddee Case - Kids Travel Case

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The informed user is deemed to be knowledgeable in the relevant design field and able to make a side-by-side impression. There is, rightly in my judgment, no challenge to that conclusion, which is consistent with what was said by the Fourth Chamber of the General Court in Sphere Time v OHIM ( Case T-68/10) [2011] ECDR 20, para 82.

This meant that the wheels and handles of the Trunki case stood out as “striking features”, whereas the wheels on the Kiddee Case were barely distinguishable from the body, and the handles and body were the same colour. Law went on to state that the ruling is one which will have a lasting impact on the world of design and concept creation. Dear Anon - please see Article 92 of the Community Design Regulation, in particular para 3 (reproduced below).However, the decision slightly glosses over the fact that it was the surface decoration of the Kiddee case (giving the impression of an insect with antennae in one embodiment, or a tiger with ears in another) that distanced the overall impression from being that of a horned creature. This will be the first time the Supreme Court has heard a case involving the application of Community Registered Design law, and is likely to have important repercussions for the creative industries. This is a very cost effective way to have a number of registrations which vary in the protection they might offer.

In its view, a global comparison could not fail to reveal that the Magmatic CRD created the impression of a horned animal.By contrast, the two Kiddee Case models at issue gave the impression of different creatures: the first of a ladybird, depicted by a two-toned surface with stickers replicating a ladybird’s spots; the second a tiger, depicted by stickers creating ‘stripes’ on its side and ‘whiskers’ on its front. In the Court of Appeal, Kitchin LJ gave judgment and held that the trial judge had erred in two respects. It is a conclusion I would have reached with some regret, as the conception of the Trunki, a ride-on wheeled case which looks like an animal, seems to have been both original and clever; as Arnold J said at para 16 of his judgment, “[t]here is no dispute that the Trunki was an innovative design” and it “has won numerous awards and has been a significant commercial success. Absent any other plausible reason for this, the SC agreed with the CoA that the RCD did not protect just the shape alone, but also the colour contrast between these features. This means the design registration for the Trunki only covered the actual animal shape that was shown in the application – it did not give its owners any right to claim a monopoly in any ride-on children's luggage in the shape of any animal.

Jeremy Drew, head of retail at law firm RPC, said it would “send shockwaves through design-driven businesses”. Kiddee cases are made by the Hong Kong-based PMS International and, like Trunki cases, are decorated to look like animals. At first instance, the High Court considered that the Trunki and the Kiddee case created the same overall impression, and therefore the Kiddee Case was held to infringe the Trunki RCD. Accordingly, as Kitchin LJ observed at para 42 of his judgment, “the various representations [in the CRD] are shown in monochrome, and so it must be concluded that this design is not limited to particular colours”, and therefore “PMS cannot point to the colour of the Kiddee Case as being a point of distinction”.

g. its colouring and spots) also influenced the overall impression it created: in one design to give the impression of a ladybird with antennae, in another a tiger with ears. The surface decoration given to many objects could either reinforce or dilute the impression of the unadorned shape. had not considered the CRD ‘globally’ and did not have regard to the fact that the CRD was clearly intended to create the impression of a horned animal because of its shape.

The conditions under which an appeal may be lodged with a Community design court of second instance shall be determined by the national law of the Member State in which that court is located. It is a conclusion I have reached with some regret, as the conception of the Trunki, a ride-on wheeled case which looks like an animal, seems to have been both original and clever," the Judge conceded. It means that in the future, firms will more than likely have to process a number of different protecting methods to try and show that an original design idea is copyright, else they will face similar competition from companies piggybacking off an idea. The appeal was heard on 3 November by Lord Neuberger, Lord Sumption, Lord Carnwath, Lord Hughes and Lord Hodge. On Dragon’s Den, where Law tried to launch the product, Peter Jones warned the creator that the design was unprotectable.The Claimant's CRD consisted of monochrome computer generated images and the Court of Appeal found that the colour contrasts were part of the CRD and there should be taken into account in considering the overall impression. Whilst these reduced application costs should attract more users to seek protection of products through design right, the fact remains that it will be difficult to successfully assert design right infringement in the UK courts. More broadly, it is for an applicant to make clear what is included and what is excluded in a registered design, and he has wide freedom as to the means he uses. Magmatic claimed that the Court of Appeal's ruling undermined the rights of more than 350,000 creative British businesses with designers left vulnerable to flagrant design infringement in the UK. It is therefore often advisable to file an application covering a number of separate designs to particularly protect or stress the most important features of a design.