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Showing posts from December, 2014

Designs in Ice Cream Vans: Whitby Specialist Vehicles Ltd v Yorkshire Specialist Vehicles Ltd and Others

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There are often a lot of cases brought by the fashion trade or toy or novelty manufacturers in the run up to Christmas. There don't seem to have been all that many this year judging by the Chancery Division cause list and the Patent Court and Intellectual Property Enterprise Court ("IPEC") diaries. However, there has been a case about ice cream or rather ice cream vans. In Whitby Specialist Vehicles Ltd. v Yorkshire v Yorkshire Specialist Vehicles Ltd[2014] EWHC 4242 (Pat) the biggest manufacturer of ice cream vans in the UK sued one of its competitors or unregistered Community design, design right and trade mark infringement.

The trial took place in the Patents Court on the 10, 12-14, 20 Nov 2014 and judgment was delivered on the 17 Dec 2014. Usually actions of this kind proceed in IPEC where trials are limited to two days and costs are capped at £50,000 for the trial on liability and £25,000 for the account or inquiry. Those not in the case have to wonder why that did…

Is Infringement of a Foreign Patent akin to Highway Robbery?

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Patents: Les Laboratoires Servier and another v Apotex Inc and others[2014] UKSC 55, [2014] 3 WLR 1257, [2014] WLR(D) 452, [2014] BUS LR 1217, UK Supreme Court


In Everet v. Williams (1893), 9 L.Q. Rev. 197, the highwayman John Everet sued his partner in crime Joseph Williams "for discovery, an account, and general relief" for dealing "with several gentlemen for divers watches, rings, swords, canes, hats, cloaks, horses, bridles, saddles, and other things" which they acquired "at a very cheap rate". The court dismissed the action on the ground that no action arises from a disgraceful act ("ex turpi causa non oritur actio"), fined the claimant's solicitors and ordered them to pay the defendant's costs. They got off lightly. Their client and the defendant were arrested, brought to trial for their "dealings" and hanged. You can find out more about the case in The Highwayman's Case.

Fast forward to 2008.  In Les Laboratoires Se…

What is the definition of "design" in s.213 (2) of the Copyright, Designs and Patents Act 1988 following the deletion of "any aspect of" from the sub-section

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In DKH Retail Ltd v H. Young (Operations) Ltdthe claimant, which claimed design rights and unregistered Community design in relation to the front portion and hood of a range of gilets sold under the product name Academy under the Superdry brand sued the defendant for importing and selling a range of Glaisdale gilets under the Animal brand. The defendant raised the usual defences on subsistence, ownership and infringement. 
This case is interesting because it is the first judicial analysis of the effect of the deletion by s.1 (1) of the Intellectual Property Act 2014 of the words "any aspect of" from the definition of "design" in s.213 (2) of the Copyright, Designs and Patents Act 1988. I had discussed that deletion in "How the Intellectual Property Act 2014 will change British Unregistered Design Right Law"11 June 2014 and "The Intellectual Property Bill 2013"28 May 2013.  Even though the case began before the Intellectual Property Act 2014 re…

Is this a copy? John Kaldor Fabricmaker UK Ltd v Lee Ann Fashions Ltd

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In John Kaldor Fabricmaker UK Ltd v Lee Ann Fashions Ltd[2014] EWHC 3779 (IPEC) (21 Nov 2014) Judge Hacon had to decide whether the fabric used to make the dress in the bottom photo was a copy of the fabric in the top one.

The Facts
Some time before the beginning of Aug 2012 Lee Ann Fashions Ltd. ("Lee Ann") received the following design brief from Marks & Spencer:
"Print Direction  More primitive wood blocking prints, bold batiks, multi-stripes and tribal prints. Often these are anchored with stone and Black with highlights of the colour pops of the collection"

On 2 Aug 2012 employees from Lee Ann met a sales executive of John Kaldor Fabricmaker UK Ltd ("Kaldor"). Lee Ann invited Kaldor to supply samples of its materials so that Kaldor could bid for Marks & Spencer's order.

Kaldor supplied 22 samples including 4 metres of the fabric in Annex 1. Lee Ann offered to supply Marks & Spencer dresses made from that fabric. The offer was accepte…