e. "skilled in the art"), by which he informs them what he claims to be the essential features of the new product or process for which the letters patent grant him a monopoly. The Supreme Court’s judgement can be viewed in full, along with images of the Trunki and Kiddee Case here. There were also important differences in the contrasting wheels and strap and the presence or absence of surface decoration. The HC on the other hand had viewed the RCD as just protecting the shape alone and had not taken account of the colour contrast (which was absent in the Kiddee Case) when comparing the designs.

However, obtaining patent protection is a more complex and costly process than obtaining design protection, and one that is often impractical for small designers. Jeremy Drew, head of retail at law firm RPC, said it would “send shockwaves through design-driven businesses”. It was widely accepted that Magmatic's Trunki product was a highly innovative product, which had met with significant critical and commercial success, with numerous awards for its design. While the judgment could be clearer on this point, it seems that its primary reason for upholding the Court of Appeal doing so was based on the overall impressions of the shapes. For more information read more about our use of cookies here, your setting can be changed at any time.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. We consider what this decision means for designers and what practical lessons can be learned from the Supreme Court’s ruling. 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.

Both companies presented their case to five supreme court justices in London on Tuesday, who are expected to give their ruling within weeks. Whereas Arnold J had described the CRD as constituting a claim “evidently for the shape of the suitcase” and that decorations on the Kiddee Case were therefore to be ignored, Kitchin LJ’s view on the other hand was that the colouring contrasts on the CRD and the allegedly infringing articles represented a potentially significant difference. e. that the CRD covers shape only, and should only be compared with the shape (and not surface decoration) of the Kiddee Case. Novelty can then be attributed to changes in ornamentation whereas the entitlement of the design corpus for novelty/individual character rights can rightfully be preserved for the prior art shape? However, this ‘genericising’ (or broadening) of the design should be matched against the need for the design to be valid.The ultimate question in any design case under European Union harmonised law is whether the overall impression of the design of (or incorporated in) the alleged infringement is the same as that of the CRD. For several reasons the Court of Appeal said that the Kiddee Cases in issue had different overall impressions, being of an insect and a non-horned animal respectively. Kitchin LJ was of the view that the absence of decoration on the CRD reinforced the horned animal impression made by the CRD, and that the judge had also failed to take this into account also. Given that the Court of Appeal was right to hold that Arnold J misdirected himself in the respects discussed above, I consider that they were, to put it at its lowest, entitled to hold that the judge materially misdirected himself, and that the Court of Appeal should reconsider the question of infringement for itself.