Azure gets the blues as CA throws out its case

Here's a fresh new design right decision from the Court of Appeal for England and Wales (Lords Justices May, Neuberger and Wilson). It's Landor and Hawa International Ltd v Azure Designs Ltd, a ruling of 27 July which hasn't quite reached BAILII yet but which has been noted by LexisNexis Butterworths (well done, the IPKat says).

From 1985 LHI designed, made and sold travel suitcases and bags. In June 2002 its managing director designed an expander section (the expander design) for a rigid (‘shell’) suitcase; cases with that design were successfully marketed and sold by LHI or with its consent, both in the UK and abroad, from June 2002. In the summer of 2003 LHI discovered that Azure was had imported and was selling in the UK expander suitcases made in China under the brand name ‘Label’ and which, LHI alleged, infringed its design rights. Seeking damages and an injunction, LHI sued Azure for infringement of both registered and unregistered design right.

The trial judge held for LHI, taking the view that section 213(3)(a) of the Copyright, Designs and Patents Act 1988 ("Design right does not subsist in ... a method or principle of construction") should be narrowly construed and did not apply unless the purpose of the expander section could not be achieved by any other means. Azure appealed to the Court of Appeal, which considered three issues:
* did LHI enjoy unregistered right protection in the expander design?

* were the design rights being claimed in "features of appearance of a product which were solely dictated by its technical function"?

* was the trial judge correct to grant a quia timet injunction restraining Azure from marketing and selling products that infringed the design rights, despite the fact that any threat to do so had been withdrawn by Azure by the time LHI issued proceedings?
The Court of Appeal dismissed the appeal, taking the view that the trial judge was right on all points for all the right reasons.

The IPKat wonders, in the light of the issues concerned and the shortest of shrifts that the Court of Appeal gave this issue (if the LexisNexis Butterworths note is anything to go by), why this case had to go on appeal at all. Merpel's happy though: it's a case about a case ...

More lost cases here, here and here ... and here

Zidane the butt of Chinese prank

The IPKat is grateful to sharp-eyed Susy Scardocchia (OHIM) for forwarding him this delicious link to Reuters. Apparently Zhao Xiaokai, general manager of a sport-related company, paid 2,000 yuan ($250) to register as a Chinese trade mark a silhouette of Zinadine Zidane head-butting Italy defender Marco Materazzi (for those readers who have been too busy pursuing deep truths to be distracted by mere trivia, the head-butt was the second most significant French cultural event of 2006, after the rescue of Danone yoghurt from the predatory Americans). The goods for which registration is sought are shoes, hats and beer products. Says Zhao:
"This recognition level of this trade mark is very high. Using a silhouette to render this image avoids violating the soccer star's image rights".
The IPKat doubts that this is true. Whatever "image rights" means, you're asking for trouble if you commercialise a silhouette that clearly identifies the person concerned. Whether we're talking about rights of personality, privacy, unfair competition or passing off, any self-respecting celebrity will sue - whether he has a chance of success or not - if only (i) to keep himself in the limelight, (ii) to remind potential licensees of his marketing potential and (iii) to deter others from free-riding on his reputation. Merpel wonders whether, to Chinese consumers, Zinadine Zidane's attraction lies more in his command of the martial arts than in his mastery of the midfield.

Register a Chinese trade mark here
How to head-butt here
3,200,000 Google hits for "zidane" + "headbutt" here
The Zidane head-butt song "Coup de Boule" on YouTube here.

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