Mann J referred to Hensher to find general principles 1. intention = real significance 2. AC = composite phrase (but need not be same person) 3. Expert evidence not required 4. need not be a work of art in this case: C = YES justifiable pride A = NO primary purpose was not aesthetic but functionality

7. Designs Flashcards by Victoria Wan

REGIMES that could offer protection for industrial designs

Community registered designs (EU wide)
Community unregistered designs (EU wide)
UK UDR
UK registered design right

(5. Residual C protection)
(6. Passing off and TM)
(7. BOC)

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Wham-O (NZ CA)

Frisbee + mould = engraving

prototype frisbee = sculpture

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Greenfield v Rover Scott

driver mechanism of lawn mower NOT engraving

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Breville v Thorn

mould for toast maker = sculpture

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Lucas Film (sculpture)

if main purpose = functional then it is not a sculpture (see notes from copyright)

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George Hensher v Restawhile

upholstered chair is NOT AC
- but AC can be functional

Lord Simon: AC can exist even if intention is for mass production

Lord Reid, Dilhorne: AC cannot be mass produced (must be handmade)

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Lucas Film (AC)

Mann J referred to Hensher to find general principles

intention = real significance
AC = composite phrase (but need not be same person)
Expert evidence not required
need not be a work of art

in this case:
C = YES justifiable pride
A = NO primary purpose was not aesthetic but functionality

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Bonz v Cooke

Mann J referred to this NZ CA case

artist: creative ability producing something with aesthetic appeal
craftsman: makes something in a skilful way with justifiable pride in workmanship

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British Northop v Texteam blackburn

2 concentric circles protected

by artistic work (c)

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British Leyland v Armstrong

YES INDIRECT C INFRINGEMENT

BUT SPECIFIC DEFENCE

if C enforced then no free market!
purchaser has inherent right to repair car in most economic way possible
must have access to free market for spare parts
this defence only works for complex products with rare replacements (not ink cartridges)

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BBC Worldwide v Pally Screen Printing

D sold t-shirts with C’s TV Characters

Argued s.51 (derived characters from TV show and this indirectly copied drawings BUT 2D copies on t-shirt were articles made to design drawing)

summary judgement refused

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Lucas Film v Ainsworth

Mann J = rationale of s.51 is spare parts but wording of s.51 is not limited to that

s51 applies here (no C protection)
2 questions to ask:
1. was there a design doc (here yes)

design doc not for artistic work (here yes)

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Flashing Badge v Grooves

novelty badges

s.51 applies for the badge (not A work)
s.51 does not apply for surface decoration (A work)

so only (c) protection for surface protection

(design right in the badge, i.e. the placement of LED lights and shape)

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Farmers Build v Carrier Bulk

Mummery J: UDR is “limited protection against unfair misappropriation”

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Ocular Sciences v Aspect Vision (design)

design = broad

need not be visible to human eye

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Mackie v Behringer

shape = outward appearance

configuration = relative arrangements of parts/elements of article

(circuit diagram showing relevant arrangements of parts = configuration)

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Magmatic v PMS

Layering components of medical kid = configuration

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Dyson v Qualtex (shape)

shapes are not just 3D things

designs can subsist in 2D things
BUT patterns (e.g. patchwork) is not shape or configuration so not protected

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Clinisupplies v Park

various pieces of medical kit

selection of items = configuration if items layered (selection not enough)

Lambretta v Teddy Smith

tracksuit, arrangement of colours

surface decoration
not shape/configuration
no configuration, just one part of diff. colours

Electronic Techniques v Critchley

design = independent to the article

protection of design NOT limited to its embodiment in article Laddie J)
handle of fork e.g. (design) infringed if put on a knife

DESIGN RIGHT NOT CONFINED TO ITS FIRST USE IN ARTICLE

Dyson v Qualtex (surface decoration)

Jacobs LJ: this exclusion is related to its inclusion within ordinary (c) law
- so exclusion confined to that which can be described as “decorated surface”

Lambretta v Teddy (what is a surface decoration)

thin layer that runs through the article is a surface decoration

Mark Wilkinson v Woodcraft

Parker J = Q of fact and degree

does not have to be strictly 2D to be a surface decoration
need not be essentially flat (incl. beading and engravings)

SD: paint, V-grooves, beading
NOT SD: handles, quadrants, cornices

Dyson v Qualtex (surface decoration - facts)

CA: ribbing on handle = grip | functional so NOT SD

Bailey v Haynes

design law not meant to protect idea underlying the shape, that is for patents (s.213(3)a)

Fulton v Grant (method of construction)

stitching for umbrella case = technique NOT within exception though - s.213(a) only bites when it would prevent others using the method (e.g. method only results in 1 shape/configuration)

Bailey v Haynes (case)

knitted mesh bag - excluded - it was a principle of construction - no dimensional limitations on patterns claimed 0design right would be monopoly on construction

Landor v Azure

expandable suitcase - NOT exlcuded - design not only way to create expandable suitcase (can be designed differently) ONLY FALLS IN S.213(3)a if ONLY way of interpreting article

Fulton v Grant (must fit)

interpret exclusions "purposively" | - do not give it breadth far beyond what it was intended to achieve

Dyson v Qualtex (must fit)

bleed holes - chosen for fit (functional) - stops overheading - doesn't matter that its also aesthetic - MUST FIT - HUMAN hand can be article

Ocular Sciences (must fit)

human body can be article | bit that touches the eyeball = must fit exception only UDR available on outer surface

UWG v Ball

sex swing - straps NOT must fit excluded - touching human does not enable a connection for function - just a generic interface human happens to be placed on

Dyson v Qualtex (must match)

relevant degree of dependency WOULD OVERAL ARTICLE LOOK RADICALLY DIFFERENT IF ARTICLE NOT THE SHAPE IT WAS? - all about relevant dependency - strictly interpreted - not enough that public prefer exact copy - wand handle: not must match (public prefer but appearance of handle does not depend on rest of vacuum) - must fit: no monopoly on aspects of product - must match: no monopoly on aesthetic design

Farmers Build v Carier Bulk

commonplace interpreted broadly (doesn't have to be new) 2 stage test 1. compare design to designs of other articles in the same field at time of creation 2. commonplace?

originality in UDR

1. original in C sense | 2. not commonplace (s.214(4))

Lambretta v Teddy smith (design field)

all sportswear

Scholes Window v Magnet

DF: ordinary and natural meaning - all windows generally

Ultraframe v Eurocell

to be considered to be in design field, it must be "ready to hand" not something "hunted for and found at last minute"

Farmers Build

components of machine and combination = original - NOT MANY COMPARATORS BECAUSE NEW - not commonplace

Rolawn v Turnfmech

individual elements may be commonplace but whole may not be 1. identify design field in Q 2. compare C's design to ones in the field 3. make objective comparison of similarities INDIVIDUAL ELEMENTS = SIMILAR OVERALL DESIGN = DIFFERENT NOT COMMONPLACE

Amoena v Truffle

breast prosthesis - functional constraints for design - no derivation

Virgin Atlantic v Premieum

if design used for parts, comparison is between parts if design right on spout, right infringed by putting it on another tea pot

C&H Engineering v Klucnik

pig vendor - copying? - article made exactly/substantially to the copied design? OBJECTIVE TEST --> decided through eyes of the person to whom the design is directed (pig farmers) there is overall similarity

Fulton v Grant Barnett (infringement of UDR)

side by side comparison by consumer

Albert Packaging v Nampak

tortilla wrap packaging - NO DERIVATION - functional constraints - similarity explained by something other than copying