Whether an item infringes a Community Registered Design, the decision to be made is whether the item produces on the informed user a different overall impression from the design.
Because such a decision involves the application of a not altogether precise legal standard to a combination of features of varying importance, an appellate court should not reverse a judge’s decision unless he has erred in principle.
When it comes to deciding the extent of protection afforded by a particular Community Registered Design, the question must ultimately depend on the proper interpretation of the registration in issue, and in particular of the images included in that registration.
If various representations in the Community Registered Design are shown in monochrome, it must be concluded that this design is not limited to particular colours, and therefore, colour cannot be pointed to as being a point of distinction.
Absence of decoration can, as a matter of principle, be a feature of a registered design. Simplicity or minimalism can notoriously be an aspect of a design, and it would be very curious if a design right registration system did not cater for it.
If absence of ornamentation is a feature of a registered design, that does not mean that because an item has ornamentation, it cannot, for that reason alone, infringe the registered design in question: it merely means that the fact that an allegedly infringing item has ornamentation is a factor which can be taken into account when deciding whether or not it does infringe that design.
Once one concludes that a registered design claims not just a three-dimensional shape, but a three-dimensional shape in two contrasting colours, one colour for the body and another colour (or possibly other colours) for specified components, then it must follow that, when one compares the allegedly infringing article with that design on a “like for like” basis, one must take into account the colouring on that article.
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Michael Hicks and Jonathan Moss v. Mark Vanhegan QC and Chris Aikens Council Regulation (EC) No 6/2002, Arts. 4, 6, 10, 36. “Trunki”. IIC 47, 863–864 (2016). https://doi.org/10.1007/s40319-016-0515-4
- Colour and shape
- Overall impression
- Community Registered Design
- Absence of decoration