SCOOP - Reckitts roll P&G over in CA

Last December, in Procter & Gamble v Reckitt Benckiser [2006] EWHC 3154 (Ch) (available here) in which Mr Justice Lewison - sitting in the Patents Court in its alter ego as the Community Patent Court- held that the packaging of Reckitt Benckiser's Air Wick Odour Stop infringed Procter & Gamble's validly-registered Community design for the packaging of Febreze (a custom-designed canister surmounted by a trigger within a housing). Illustrations of both parties' products appear in the earlier judgment.

The IPKat has learned that this morning the Court of Appeal for England and Wales has reversed Lewison J's decision, while also clarifying the degree of protection available to an original design. Giving judgment for the Court, Lord Justice Jacob is said to have stated that there was sufficient difference of detail between the two for Reckitt Benckiser’s ‘Air Wick’ to be regarded as non-infringing.

Frustratingly for the IPKat and his readers, the full text of this decision has not yet been posted on BAILII. The Kat, however, can't help thinking about the warnings the House of Lords gave in Designer Guild Ltd v Russell Williams about the Court of Appeal substituting its own finding of facts for that of the trial judge. Is this a relevant issue? And has the Court of Appeal fireproofed its decision against such criticisms? All will soon be revealed.

STOP PRESS: the judgment was posted on BAILII at 3pm:
SCOOP - Reckitts roll P&G over in CA SCOOP  -  Reckitts roll P&G over in CA Reviewed by Jeremy on Wednesday, October 10, 2007 Rating: 5

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