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Post Trunki Design Applications

Written by Thomas Mould on 10 May 2016

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Since the decision of the Trunki design case designers are now increasingly cautious to include too many details of their designs, such as colour and surface decoration, in design right applications to make it difficult for copycat designs to get round the registered rights.

The Court of Appeal's ruling, that the Community registered design for Magmatic's Trunki suitcases was not infringed by a rival suitcase designer PMS International Group (PMS), overturned an earlier judgment by the High Court.

A design right does not protect an idea, no matter how novel, and so Magmatic was never going to be able to be able to have a monopoly over the ride on suitcase concept.

The case has led to design drawings being submitted to the Intellectual Property Office without specific embellishment to ensure that competitors can’t so easily design around pre-existing registered designs as happened in this case.

To become a registered design-

A design must be new and have 'individual character' in order to qualify for Community design rights protection.

According to the EU's Community Design Rights Regulation, registered Community designs are 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 date of filing the application for registration or, if a priority is claimed, the date of priority".

The degree of freedom of the designer in developing designs must be taken into account during any assessment of the individual character of those designs. Other factors such as the nature of the product associated with the design and the sector in which the product belongs are also factors that should be considered, according to the Regulation.

According to EU case law, the assessment of whether a design has individual character is determined by the overall impression that it produces on the informed user of that design, which will change from case to case.

The Trunki decision has caused designers to be more cautious in protecting their designs and means that existing rights holders should revisit their design portfolio and make sure that they have the maximum protection that they can get for their intellectual property.

If you'd like to know more about this article please send an email to Thomas Mould quoting the article title and any questions you might have, alternatively call the office number on 02380 235 979 or send an enquiry through our contact form.

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