Rowlan Ltd v Turfmech Machinery Ltd, 2008, ECDR, 13
Citation:Rowlan Ltd v Turfmech Machinery Ltd, 2008, ECDR, 13
Rule of thumb: What is the test for considering whether a new product breaches a registered design? These are simple cases – it just involves a superficial basic eye test of the product to see if they could be confused.
Judgment:
The Court held that the basic test of deciding whether a product infringes a registered design is just a basic eye test carried out by the standard reasonable man to look at the products from all angles and consider if they look too similar or not. The facts of this case were that there was a lawnmower with a registered design that had a very wide range of blades at the bottom for cutting the grass. There was a new lawnmower whereby the machine was of a normal width but it could fold out to be of a greater breadth, and it also looked very different when at greater breadth. The original company who registered the wide lawnmower argued that this infringed their design. The Court held that there was an obvious difference between the new models being complained about and the models which were registered, ‘... obvious difference in the shapes of the support structure and tank, both when viewed from the rear and when viewed from the side... (para 126)... So far as folding configuration is concerned, the Jerry Clipper does not have one... In its fully deployed form it gives an obviously different impression from the Rowlan machine... There is no sensible level of generality at which one can say that the Rowlan machine does not vive a clearly different impression inall its configurations...’ (Mann J at para 177),- The test for having an unregistered design protected is slightly higher and more unpredictable than the test for being able to get a design registered. The Court held that a even if a design is not registered provided that it is quite clearly unique in comparison to other designs then it can still qualify for protection. The Court did caution that in applying this test for unregistered it is difficult to give exact answers on when a design will qualify and when it will not, meaning that people are better advised to register a design where the test is less stringent and it is easier to predict if it will obtain protection, ‘It has the merit of being short (unregistered design law) (but)... The problem is deeper: neither the language nor the context of the legislation give any clear idea of what was intended. Time and time again one struggles but fails to ascertain precise meaning, a meaning which men of business can reasonably use to guide their conduct’, Jacobs LJ at para `14.
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