Mr Whippy design is protected
Written by Thomas Mould on 05 January 2015« Return to Reading Room
Yorkshire Specialist Vehicles Limited instruced the claimant Whitby Specialist Vehicles Limited to make an ice cream truck according to Whitby’s “Mondial” design. Ice cream trucks in general are converted from ordinary commercial vans, which for this example was a 2013 Mercedes Sprinter.
It was claimed that the defendants Amer and Omar copied the purchased Mondial by using panels from the Mondial as plugs to produce moulds from which further GRP panels were made. They were also alleged to have copied various components. The defendants admitted at trial that this is what they had done despite denying the accusation in the past. It was alleged by the Claimants that up to 30 vans were created by the Defendants using this design.
The design of the Mondial was protected by UK registered design. The claimant accepted that the design for the Mondial was not revolutionary but an evolution of the earlier Whitby ice cream van design, in particular the Millennium model. The judge found that the design was novel and had individual character. He considered a number of general features of an ice cream van and a number of differences between the millennium and the registered design before coming to a conclusion.
The judge stated that despite the “minor differences” between the design of the Defendants’ van and the registered design, concluding that the designs were sufficiently similar and that infringement had taken place.
UK unregistered design right was found to subsist in a number of aspects of the design. The largest single issue to be determined in this case was not validity or infringement, but the liability of the fourth defendant Ghulam Rubani, father of Omar and Amer. All three maintained that he had no involvement. The judge found that, after consideration of the circumstances that he had both primary and joint liability for all of the design infringements specifically mentioned in the judgment.
This case shows that registered designs are valuable and are a genuine form of protection from copying
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