Viscount Simon said (Lord Porter agreeing) that a design which is a shape in which all the features are dictated solely by the function which is to be performed by the article to which the shape is applied and where the shape possesses no features beyond those necessary to enable the article to fulfil its function, is not registrable.
A design was invalid though registered in 1939 in respect of application to a fuse in a vulcanising apparatus. The article was a ‘mere mechanical device’ since all the features of the shape were determined solely by the function to be performed by the article to which the shape was to be applied.
What was meant by the expression ‘determined solely by function’? Lord Porter said: ‘For the appellants (proprietors of the design) it was argued that nothing, whatever functional part it might play as part of an article, was a mere mechanical device if its shape was not required for working all articles of the type in which it was embodied. A yale key, it was said, might be cut in all sorts of shapes each of which would open a different yale lock and each different shape would be a registrable design though it was devised for use with a particular type of lock only, at any rate, if the shape of the key was first devised and the lock, upon which it was to operate, was thought out and constructed later. The only non-registrable design would be a key of a shape which must be adopted in order to open any yale lock. The respondents on the other hand maintained that any article the shape of which was required to perform a functional purpose was a mere mechanical device: it did not matter that different shapes and different devices could be adopted to perform a similar purpose – in each case the shape is required for operational purposes: its ward shape is determined by its function. I do not know that the question is capable of much argument. In the present case the fuse is constructed in the shape shown in order that it may be used in connexion with a particular type of vulcanising machine, and for this purpose, I do not think it matters whether the machine was devised to fit the fuse or the fuse to fit the machine. No doubt another shape of fuse and another type of machine could be invented to perform the functional purpose of making the machine work. Such a design is to my mind a mechanical device because it has in view the object of successfully performing a mechanical act. It is a mere mechanical device because substantially that is its only object . . Primarily the object of the Act is to protect shape, not function, and not to protect functional shape.’
Viscount Simon, Lord Porter, Lord MacMillan, Lord Uthwatt
(1948) (65 RPC 1)
England and Wales
Cited by:
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Lists of cited by and citing cases may be incomplete.
Updated: 03 September 2021; Ref: scu.667559 br>