Trunki - an open and shut case of design infringement?

Trunki - an open and shut case of design infringement?
What does it take to create a different overall impression in design cases, and could the Court of Appeal's decision see the Trunki case go all the way to the Supreme Court?

Original news

Magmatic Ltd v PMS International Ltd [2014] EWCA Civ 181, [2014] All ER (D) 12 (Mar)

Magmetic Ltd (Magmatic) sold ride-on suitcases shaped like a horned animal under the trade mark 'Trunki' and a Community registered design (CRD). PMS International Ltd (PMS) imported and sold the 'Kiddee Case', designed like a tiger, leopard, cow, pig, ladybird and bee. The judge found that PMS had infringed the CRD and it appealed (see our blog post on the decision here). The Court of Appeal, Civil Division, in allowing the appeal, decided that the judge had erred in eliminating the decoration on the Kiddee Case from his consideration and had failed to consider the colour contrast between the wheels and the body of the CRD, absent in the Kiddee Case.

What is the background to this appeal?

In the High Court hearing, June 2013, the judge ruled in Magmatic's favour, finding that its Community Registered Design (CRD) for the Trunki had been infringed by the Kiddee Case. Arguably the judge left the door open for an appeal by commenting he was 'rather more doubtful' in coming to the conclusion that the overall impression created by the Kiddee Case was the same as the CRD yet the overall impression created by the Rodeo (an early version of the Trunki) was different. Despite his doubts, he concluded that the Kiddee Case did infringe.

Notably, and perhaps controversially, the High Court decided that since the CRD was for the shape of the Trunki case, only the shape of the Kiddee Case should be compared and other aspects such as surface decor

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