The court considered how it should compare the design as registered and that of which complaint was made of copying: ‘The decision whether the registered design and the designs of the alleged infringements are substantially different is for the court and cannot be delegated to the opinions of the witnesses. It must be decided on a comparison of the features which appeal to, and are judged by, the eye. To do this, the court must adopt the mantle of a customer who is interested in the design of the articles in question as it is the eye of such an interested person, the interested addressee, which is relevant. To adopt that mantle it is often helpful to look at what was available before the priority date of the registered design as the eye of the interested addressee could be drawn to details if the design of the registered design only differs from the prior art by such details. However where a design differs radically from previous designs then the interested addressee’s eye would be more likely to concentrate on and he would be more likely to remember the general form of the new design rather than the details . . It is settled law that the comparison must be made between the registered design and the alleged infringement side by side and also upon an assumption of ‘now and later’, namely upon the assumption that the two designs are compared side by side and thereafter the interested addressee goes away and comes back later to the alleged infringements. It is in that way that the court can conclude which features of the design would in reality appeal to and be noticed by the eye and then decide whether the designs are or are not substantially different.’
Judges:
Aldous LJ
Citations:
[1993] RPC 76
Statutes:
Registered Designs Act 1949 1 7
Jurisdiction:
England and Wales
Cited by:
Applied – Thermos Limited v Aladdin Sales and Marketing Limited CA 10-May-2001
The complainant alleged breach of their registered design for a flask. Whether the designs are substantially different is for the court on a comparison of the features judged eye. The court represents a customer interested in the design. It can look . .
Lists of cited by and citing cases may be incomplete.
Intellectual Property
Updated: 06 May 2022; Ref: scu.182184
