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The overall appeal of a design

24 March, 2014

An award-winning design that appeals to children, toymakers and, in all likelihood, to IP lawyers was at the heart of the decision by the England and Wales Court of Appeals (Civil Division). In the High Court the single judge proceeded to compare two designs for suitcases which to a layman appears similar perhaps appeals alike. The original design ‘rodeo’ pertaining to a ride-on suitcase for children (hence with wheels coloured and otherwise) (later a Community Registered Design CRD) inspired the defendant in Magmatic Ltd v. PMS International to get the ‘Kiddee’ manufacured in China and sell the same as a cheaper version of the highly popular ‘Trunki’. Both suitcases use clasps, flat bodies, rounded contours, eyelets placed on the sides and wheels for mobility.

The single judge held that Kiddee infringed Trunki given that the overall impression on seeing both the cases was the same. However, three judges of the appellate forum thought differently. They felt that the correct comparison was not between the CRD which was without any graphic designs/ colour and the alleged infringing design shorn of its distinguishing features. This was because colour and addition of graphic design contributed to the overall impression of the design. Thus, the different versions of Kiddee appeared to be a tiger, an insect or an animal with floppy ears unlike the Trunki which was like a horned animal.

The decision also dealt with the aspect of colour stating that usually if colour was not part of the design, it was filed in monochrome, yet if colour contrasts were part of the design, they would contribute to the overall impression.
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