This article titled “Trunki v Kiddee: battle over children’s luggage reaches supreme court” was written by Julia Kollewe, for theguardian.com on Tuesday 3rd November 2015 18.58 UTCJohn Fawcett has joined the firm as Partner
The maker of Trunki ride-on suitcases for children has begun presenting its case in the UK’s supreme court in a legal battle with a Hong Kong firm that could have implications for small creative businesses that rely on design rights.
In the long-running tussle, Magmatic, the Bristol-based company behind Trunki cases, argues that Kiddee case luggage infringes on its registered design rights. Kiddee cases are made by the Hong Kong-based PMS International and, like Trunki cases, are decorated to look like animals.
Magmatic won a high court judgment against PMS in July 2013, but this was overturned in March 2014 by the court of appeal, which ruled that the Kiddee case looked sufficiently different to the Trunki one.
Both companies presented their case to five supreme court justices in London on Tuesday, who are expected to give their ruling within weeks. They could decide to refer the case to the European court of justice. The UK’s Intellectual Property Office advocated a referral at the hearing.
Ewan Grist, a specialist intellectual property lawyer at law firm Bird & Bird, said the case was “likely to have profound implications in the design world, whichever way the supreme court rules”.
Rob Law, founder of Magmatic, led a #ProtectYourDesign campaign on Twitter to call for a further appeal to the supreme court and promote appropriate intellectual property protection for British designers. The campaign is backed by a number of UK designers and entrepreneurs, including the Habitat founder, Sir Terence Conran, the Brompton Bikes boss, Will Butler-Adams, and the Grand Designs presenter, Kevin McCloud.
Law tweeted on Tuesday: “350,000 British designers in UK contributing £16bn to economy yet copyists can get away with stealing designs”. He has described the court of appeal’s ruling as disastrous for hundreds of thousands of small creative British businesses.
Richard Willoughby, who specialises in design and patent litigation at law firm D Young & Co, said: “The outcome of the Trunki case may significantly impact the scope of protection for registered community designs … and is eagerly awaited by businesses and practitioners alike.”
The legal battle has pushed Magmatic deep into the red, with losses widening to £1.5m last year from £1.4m in 2013. Law invented the Trunki in 1997 and has sold more than 2m of the ride-on suitcases since 2004. He was turned down by the judges on the BBC show Dragons’ Den in 2006 and left without any investment, but went on to sign a contract with John Lewis.
PMS has admitted that its discount cases were inspired by the Trunki.
The Trunki design was protected by a community registered design (CRD) that consisted of six representations of the exterior of the case from various angles and perspectives. The court of appeal said this created the impression of a horned animal, whereas the Kiddee case resembled an insect with antennae or an animal with floppy ears. Magmatic’s computer-aided design (Cad) drawings did not show any surface decoration.
About 30% of designs across the EU are registered using Cad. The court of appeal ruling meant Cad drawings would no longer be offered the same protection as line drawings, which meant third parties would be able to claim differences in surface decoration should be taken into account, according to the Anti-Copying In Design group.
Magmatic has argued that since its drawings did not show any graphical designs on the exterior of the suitcases, the designs on the surface of the Kiddee case had to be ignored. PMS disagreed and contended that they should be taken into account.
Willoughby said: “Shape registrations are very important – typically the broadest registrations … What we are seeing now is the difficulties in the interpretation of the 2002 European design law filtering through to major international disputes.”
guardian.co.uk © Guardian News & Media Limited 2010
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