The EU design laws are governed by the Community Designs Regulation (6/2002/EC) (CDR).
A “design” is “the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation”
They must be “new” and have “individual character”.
A design is considered to have individual character if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public before the filing or priority date of the design for which protection is sought.
When assessing individual character, the degree of freedom of the designer in developing the design shall be taken into consideration.
The scope of the protection conferred by a Community design includes any design which does not produce on the informed user a different overall impression
In assessing the scope of protection, the degree of freedom of the designer in developing his design shall be taken into consideration.
‘Trunki’ the trade mark and its owner Magmatic Ltd manufactured and sold a child’s ride-on suitcase. Its inventor Robert Law applied for a Community registered design which was subsequently granted (‘CRD’). There then followed a series of ‘TRUNKI’ products.
PMS International Ltd, the defendant imported and sold a product similar to Magmatic’s under the name “Kiddee Case”. They accepted that it was a version of the “Trunki” product. Magmatic issued a claim and at the first trial it was held that the design was valid and infringed.
The Court of Appeal’s Judgement provided detailed and practical guidance and in particular how a registration’s graphical representation and the information it conveys is to be interpreted by a court. It was held that the design was infringed and the key distinction between the Court of Appeal and the decision at first instance determined that the surface decoration and the colour contrast to be relevant.