Case No. IP-2018-000201

1.The defendant (‘PMS’) seeks summary judgment which would have the effect of striking out part of the claim. No facts are in dispute – the application raises solely a point of European Union design law. 2.3.This application concerns only UCDs. It is not in dispute that five of the six toys, all but the unicorn, were first shown to the public in October 2017 at the Mega Show, a trade fair in Hong Kong. It is agreed that the nature of the Mega Show was such that the design of each of the toys would have become known in October 2017 in the normal course of business to the circles specialising in the sector concerned, operating within the Community, within the meaning of art.7 of Regulation (EC) No. 6/2002 (‘the Design Regulation’). 4.The toys were subsequently exhibited for the first time in the EU at the Nuremberg Toy Fair in Germany in January 2018. 5.PMS argues that the relevant date for assessing the novelty of a UCD is the date on which the UCD comes into being. That is governed by art.11 of the Design Regulation. In this case, PMS continues, all five UCDs in issue first existed in January 2018. By then all five designs lacked novelty because of the Hong Kong Mega Show the previous October. Therefore none of those five designs is a protected UCD. 6.The issue in this application is whether that is a correct analysis of the law on the agreed facts. There has been no clear authority on the point from the CJEU. There have been judgments in Germany, including one from the Federal Supreme Court, provoking a divided view among text book authors and commentators in the UK. 7.For simplicity of discussion, I need consider only the novelty of the designs.