Zaps Triangle Neck Poncho Design Not Invalidated By Slit Neck Poncho Design

A recent Patent Office decision relating to Registered Designs for clothing items has provided further guidance on the scope of protection offered by registered designs.

The two main requirements for registration as a design are:

• it must be new i.e. there must be no existing identical or similar design which only differs in immaterial details.Â

• It must have individual character i.e. it should give a different overall impression to informed users than any other design which has previously been made available to the public.

Mrs Walton, an owner of both UK and EU registered design relating Ponchos applied to have Zap Ltd’s UK Registered Design for a type of Poncho invalidated on the basis that its designs did not fulfil the above requirements.

In his comparison of the two designs, Allan James for the Registrar, began by indicating the definition of ‘informed user’ as given in the Patents County Court case of Woodhouse UK PLC v rchitectural Lighting Systems case [2006]. This includes reference to the “notional person” as being a regular “user of articles of the sort which is subject of the registered design”, “a person to whom the design is directed” and someone who is more familiar with the item than an average consumer may be, with “some awareness of product trend and availability and some knowledge of basic technical considerations.”

He went on to indicate that he did not view the two designs to be either identical or to create the same overall impression from the perspective of an informed user. The basis for that the differences outweighed the similarities. The only similarity between the designs were that both were comprised of a basic rectangular shape and gave the impression of bound edges. In respect of the basic shape he indicated that an informed user was likely to be aware of the limitations on the design of this element and as such would pay more attention to the other elements. The deciding factor appears to have been the difference in the design of the neck with Mrs Waltons being just a straight slit while Zap’s was a triangle shape.

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