The Court of Appeal has now reached a decision on the Trunkie litigation. The Trunkie is a suitcase in the form of a novelty animal which allows for the user (child) to ride on it, while no doubt the user’s grateful parent pulls, advancing the party with indecent speed to an airline gate.
The proprietor of Trunkie, Magmatic, secured a design registration which resulted in litigation when a competitor PMS launched a similar product. Initially the lower court found infringement which was reversed on appeal.
The Supreme Court maintained the Appeal decision and for reasons which all persons registering designs should note when filing their applications for registration.
In assessing matters of infringement, the court will assess what is the overall impression created on the user by the registered design by considering the drawings used in the application.
In the case to hand, the design drawings included a two tone representation in which the wheels were depicted as significantly darker than the rest of the product. In the competitor’s product the wheels were not contrasting.
Infringement was not found as the PMS design created a different overall impression to that registered.
This case highlights the importance of considering very carefully how best to depict your product design in the representations used in the application. Where there is more than one aspect of the design that is important, a number of applications should be made each being directed to the important features. Non-significant features may be depicted in broken outline or otherwise delimited. This is particularly so where those parts of the product may be upgraded or varied as the product is developed, for example, the shape of a button on an electronic device.