3 March 2014

Trunki sunki: registered design setback in Kiddee Case fight

Take a look at this picture. 

The first column depicts three aspects of the Community Registered Design of the Trunki ride-on suitcase for kids.

The 2nd and 3rd columns are photos of a competing product, the Kiddee Case (ladybird and tiger varieties respectively) in equivalent positions.

Does the design of the Kiddee Case produce on the informed user a different overall impression from that produced by the Trunki design?

This was the question the Court of Appeal had to grapple with in the latest instalment of a legal battle to resolve whether the Kiddee Case infringed Trunki's design, or whether it was legitimately satisifying a gap in the market for a discount alternative.

A registered design gives its owner a monopoly right for up to 25 years to make articles incorporating the design, and to sue anyone infringing that right, even where the design has not been copied.  

Last year, the High Court ruled that Kiddee Case had infringed Trunki's design, finding that: 
"the overall impression the Kiddee Case creates shares the slimmer, sculpted, sophisticated, modern appearance, prominent ridge and horn-like handles and clasps looking like the nose and tail of an animal which are present in the [Trunki design]".
However, unfortunately for Trunki the Court of Appeal has just reversed that decision and held that the Kiddee Case does not infringe the Trunki design. 

Critically, the High Court judge was held to have failed to take account of the fact that the Trunki design was intended to create the impression of a horned animal, and to have wrongly ignored the decoration of the Kiddee Case in his overall assessment. The Court of Appeal held that the ladybird and tiger designs of the Kiddee Case were plainly not of a horned animal, having antennae and ears respectively, and so produced a very different impression. This seems to leave open the issue of whether the cow variety of the Kiddee Case might infringe given that a cow can be a horned animal. 

However, it was also significant that Trunki's design had a marked colour contrast between the wheels and body of the case.

Trunki is reportedly appealing the case further to the Supreme Court. The Trunki is sold in 97 different countries, and 20% of all 3 to 6 year olds in the UK are estimated to possess one. So a 25-year monopoly in that type of market is plainly one worth fighting to preserve.

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