Case No. IP-2018-000201

37.In their helpful written and oral submissions, Mr Tritton and Mr Aikens both referred me to the reactions of text book authors and other commentators to the judgments in Thane and Gebäckpresse. I need only consider the text books. 38.In Stone, European Union Design Law, 2nd ed, the author accepts the view taken in the German courts while pointing out the consequent practical difficulties for designers, at ¶18.08-25. The authors of Intellectual Property Law, 5th ed., Bently, Sherman, Gangjee and Johnson, likewise adopt the law as stated in, or to be inferred from, Gebäckpresse, at pp.737-8, as does Hasselblatt, Community Design Regulation (EC) No 6/2002, A Commentary, pub. 2015, at p.155. 39.The authors of Russell-Clarke and Howe on Industrial Designs, 9th ed., Howe, St Ville and Chantrielle, do not share this view. They note (at ¶2-009) that arts.7(1) and 11(2) of the Design Regulation lay down a substantially identically worded test. They continue: “In neither case would it appear that the act of disclosure need take place within the actual territory of the Community; it would appear both necessary and sufficient that the disclosure will reasonably have become known in the normal course of business to the relevant circles within the Community. This test would appear to be satisfied, for example, if a new product is exhibited at a major trade exhibition held outside the Community but which is regularly attended by substantial members of persons in the trade from the Community.” 40.The authors go on to discuss art.110(a)(5), Thane and Gebäckpresse (at 2-100 and 2101) and make a point about art.3 of TRIPs. The authors firmly disagree with the judgments of the German courts and conclude (at 2-102) that it is desirable that the question should be determined by the CJEU.