Colour contrasts and surface decoration in registered designs

In order to be capable of registration under the Community Designs Regulation, a design must be ‘new’ and have ‘individual character’. It will 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 that has been made available to the public before the filing or priority date of the design for which protection is sought.

In Magmatic Ltd v PMS International Ltd, the claimant, Magmatic, manufactured and sold a child’s ride-on suitcase under the trademark ‘Trunki’. The defendant, PMS, was a distributor of a competing product — the ‘Kiddee’ case. A striking feature of the Trunki design was that the handles gave the impression of a horned animal. The Kiddee design came in two main versions — one with handles that looked like an animal’s ears and one with handles that looked like an insect’s antennae.

Magmatic successfully claimed in the High Court that the Kiddee design infringed its registered design, the judge finding that despite some differences, the overall impression created by the Kiddee design was similar with the Trunki design. PMS appealed…

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