Interpretation of the ‘066 design
22.The first task is to interpret the ‘066 design. As I have already said, it was common ground that this is for the front and back of a hoody bearing the “London+Flag+England” legend. I find that the hoody shown in the design is unexceptional, as is the location of the legend, and Mr Erol did not suggest to the contrary. Thus the only element which can convey novelty and/or original character on the design as a whole is the legend itself. The nature of the fabric (eg 100% cotton) is not indicated, nor is the fact (if fact it be) that the legend is embroidered rather than printed in the design shown. Neither of these forms part of the design.23.I also conclude from the fact that the registration is in colour means that the colours (principally red) form part of the design. However, I find that the colours used are common, standard, frequently used colours having no individual character either alone or in combination. It therefore does not seem to me that anything turns on this. I will say a little more about colour below.
- RECORDER DOUGLAS CAMPBELL QC :
- Introduction
- The issues
- The witnesses and their evidence
- Legal context
- 1B Requirement of novelty and individual character.
- Cantel Medical (UK) Ltd v ARC Medical Design
- Whether the ‘066 design was (a) new and (b) had individual character as at 18 May 2011.
- Interpretation of the ‘066 design
- Validity over the Urban Attitude brochure
- Validity over Lambert Souvenirs
- Whether the ‘067 design was (a) new and (b) had individual character as at 18 May 2011.
- Whether the Defendant’s garments produce on the informed user an overall impression different from (a) the ‘066 design (b) the ‘067 design.
- Conclusion