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Mowing through Design Rights

Written by Muhammed Poswall on 12 July 2009

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Rolawn Limited v Turfmech Machinery Limited

In 2002, Rolawn had designed and built its own wide area grass mower to be used for cutting 3,500 acres of land which they owned. The design was registered and due to the success of the machine several more were built. It was alleged by Rolawn that Turfmech infringed its Unregistered Design Rights and Registered Design Rights by copying several aspects of its wide area grass mowers, and subsequently building and supplying it's own wide area mowers in 2005-06. Turfmech counterclaimed arguing the registration of the design right was invalid as the appearance did not have individual character, and the appearance contained features dictated solely by the product's technical function.

The Justice Mann dismissed both the claim by Rolawn and the counterclaim by Turfmech. It found that while there was an Unregistered Design Right in the physical aspects of the Rolawn machine, there were no design rights in the way the machine had been constructed nor did the court find any infringement of copying or the mowers being substantially similar.

With regards to the Registered Design Rights the relevant legislation is the Registered Design Act 1949 as amended by the European Directive 98/71 EC. A design is defined as

"The appearance of the whole or a part of a product resulting from features of, in particular, the lines, contours, colours, shape, texture or materials of the product or its ornamentation."

The legislation further states the design must be new and have individual character, providing an overall different impression to that produced by the informed user on designs available to the public. When considering the individual character of a design the court can take into account the freedom of the author in creating the design. As a result of the legislation the Justice Mann held that the registration of the design right owned by Rolawn was valid as it gave a completely different impression when compared with other designs publicly available, hence Turfmech's counterclaim failed.

For an action against an infringement of a design right to succeed it would be necessary for the claimants to show that the overall impression of the informed user is the same or similar when comparing the same designs in the public arena. It was for this reason the Justice Mann dismissed Rolawn's claim as it found the informed user would be able to identify the differences between the two machines and as a result the overall impression in relation to all the photographs and drawings was not sufficiently similar to justify an infringement action.

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