Case No. IP-2021-000119

47.The Aldi bottles have on the front the words “The INFUSIONIST Small Batch”. This was relied on as a difference from the registered designs in which no words appear.The law48.The significance of a trade mark on the accused product was considered in Samsung:“[15] The second criticism was based on the fact that the judge took account of the fact that the Samsung products had the trade mark Samsung on both their fronts and backs. It was submitted that the informed user would disregard the trade mark altogether as being a mere conventional addition to the design of the accused product.[16] Actually what the judge said about the trade mark being on the front of the Samsung tablets was said in the context that Apple was contending that a feature of the registered design was ‘A flat transparent surface without any ornamentation covering the front face of the device up to the rim.’ He said:‘[113] All three tablets are the same as far as feature (ii) is concerned. The front of each Samsung tablet has a tiny speaker grille and a tiny camera hole near the top edge and the name Samsung along the bottom edge.[114] The very low degree of ornamentation is notable. However a difference is the clearly visible camera hole, speaker grille and the name Samsung on the front face. Apple submitted that the presence of branding was irrelevant …. However in the case before me, the unornamented nature of the front face is a significant aspect of the Apple design. The Samsung design is not unornamented. It is like the LG Flatron. I find that the presence of writing on the front of the tablet is a feature which the informed user will notice (as well as the grille and camera hole). The fact that the writing happens to be a trade mark is irrelevant. It is ornamentation of some sort. The extent to which the writing gives the tablet an orientation is addressed below.[115] The Samsung tablets look very close to the Apple design as far as this feature is concerned but they are not absolutely identical as a result of a small degree of ornamentation.’[17] So what the judge was considering was the fact that unlike the design, the front face had some sort of ornamentation which happened to be a trade mark (plus speaker grill and camera hole). Little turned on it in his view, he called it ‘a small degree of ornamentation.’ But it was a difference.[18] I think the judge was correct here. If an important feature of a design is no ornamentation, as Apple contended and was undisputed, the judge was right to say that a departure from no ornamentation would be taken into account by the informed user. Where you put a trade mark can influence the aesthetics of a design, particularly one whose virtue in part rests on simplicity and lack of ornamentation. The judge was right to say that an informed user would give it appropriate weight – which in the overall assessment was slight. If the only difference between the registered design and the Samsung products was the presence of the trade mark, then things would have been different.[19] Much the same goes for the Samsung trade mark on the back of the products. Apple had contended that a key feature was ‘a design of extreme simplicity without features which specify orientation.’ Given that contention the judge can hardly have held that an informed user would completely disregard the trade marks both front and back which reduce simplicity a bit and do indicate orientation.”This case49.It is no part of M&S’s case that its design lacks ornamentation. Nonetheless the word “Infusionist” (which may or may not be a trade mark, it was not stated) is clear enough to make an impression. It is a presence and a difference from the registered designs. The words “The” and “Small Batch” are less conspicuous, especially on the Clementine bottle, and so play no significant additional part in the overall impression of the designs.