Case No. IP-2021-000119

The law50.In Dyson Ltd v Vax Ltd [2010] EWHC 1923 (Pat), Arnold J expressed the view that the date as of which the overall impression of the registered design is compared with that of the accused design is the date of registration, a view apparently not in issue on appeal [2011] EWCA Civ 1206. It appears that there was no priority date claimed in relation to the registration in Dyson. The reasoning of Arnold J (at [42]-[45]) is relevant:“[42] The parties were divided as to the correct date as at the overall impression of the allegedly infringing design should be compared with the overall impression of the registered design.[43] Counsel for Vax contended that the comparison should be made as at the date of the alleged infringement. He submitted that this followed from the fact that art.9(1) of the Designs Directive was expressed in the present tense and from the fact that design freedom could change over time. He accepted that this meant that the scope of protection of the registered design could change over time and could either diminish or increase, but argued that there was no reason why should this not be the case. He also submitted that, if art.9(1) were interpreted as requiring the comparison to be made as at the date of registration of the registered design, then there would be a conflict with art.5(1).[44] Counsel for Dyson contended that the comparison should be made as at the date of registration of the registered design for four reasons. First, he submitted that it was immaterial that art.9(1) was expressed in the present tense, since art.9(2) must be referring to the degree of freedom of the designer of the registered design which pointed to a comparison as at that date. Secondly, he pointed out that recital (13) referred to the existing design corpus, which must be the design corpus which existed at the date of registration, and that recital (13) had been treated in the authorities as relevant to infringement as well as validity. Thirdly, he submitted that otherwise the scope of protection could be eroded by subsequent designs which adopted the striking features of the registered design one by one. Fourthly, he submitted that the comparison with art.5(1) supported this conclusion, since if the scope of the monopoly could get broader over time a prior art design which was not close enough to invalidate the registered design under art.5(1) could later infringe it.[45] In my judgment the reasons given by counsel for Dyson for making the comparison as at the date of the registered design, and having regard to the existing design corpus as at that date, are convincing.”51.Section 14 of the 1949 Act provides:“14.