In 2002, LAMBRETTA brought a case against Teddy Smith and Next for the infringement of their UNREGISTERED DESIGN RIGHT right. Next was found to have not copied Lambretta however Teddy Smith was. Lambretta brought an appeal for the findings of law with regards to Teddy Smith in 2004.
The appeal was dismissed, With Jacob LJ and LJ Sedley dismissing the appeal. LJ Sedley fully agrred with Jacob LJ who believed that:
- Etherton J, holding that colourways of a standard track top was not Âan aspect of the shape or configuration of an article or park of an articleÂ, was correct in his findings.
- The conclusion that unregistered design right cannot subsist in the design of the Lambretta top was correct as per Etherton J.
- Etherton J made a mistake in principle with regard to his approach on commonplace, meaning choice of colourways was in face a common place. He did not specify however, that the overall design by Lambretta was a commonplace.
Jacob LJ accordingly dismissed the appeal, upholding the original finding from Etherton J on the grounds that if Unregistered Design Right could subsist, it would be a commonplace.