It is beGINning to look a lot like a legal disputes saga between supermarkets in the UK. We have recently covered an ongoing dispute between Lidl and Tesco (see here), which relates to an alleged trade mark infringement. This time, Marks & Spencer (M&S) are suing the largest Europe’s discount grocery chain Aldi for copying their registered designs of the light-up Christmas gin bottles. This is the second legal case in recent times brought by M&S against Aldi, with the first one involving the famous Colin the Caterpillar cake, which has since been settled. Notably, the case at hand in relation to gin bottles demonstrates the benefits of registering designs in the UK, especially if such design is unique and has a significant value to the brand, and the brand would like to protect it against any copycats.Read More
The COVID-19 outbreak has impacted all businesses in one way or another and IP Australia understands that dealing with IP matters is not necessarily the highest priority for some businesses.
As a result, from 22 April 2020 IP Australia is providing free three month extensions of time for most deadlines but not renewal and continuation fees deadlines. Additionally, the six month grace period is still available and ordinary extensions of time will remain available for periods of longer than three months.Read More
The Court of Justice of the European Union (CJEU) recently confirmed that the “no-aesthetic-consideration” test is the preferable approach when deciding whether a design is “solely dictated by its technical function”. As a result, if aesthetic considerations are completely irrelevant the design should not be registered. However, this does not mean that the legislation requires a design to have an aesthetical merit in order to be registered as a Community Design.
Last month, the CJEU published their long-waited decision on the request for a preliminary ruling raised by the Oberlandegericht Düsseldorf (the “German Court”) back in 2016.
The CJEU has provided some clarity on the interpretation of Article 8(1) of the Community Design Regulation (CDR) and how to determine if a product’s features are “solely dictated by its technical function”. The CJEU took the chance to stress, once again, that the determination “must be interpreted in a uniform manner in all Member States”, which strongly reiterates the EU’s objective for cohesive legal application.
Looking back at 2017, statistics give us a better understanding of the big picture and help us interpreting the market to guess in which direction the economy is going to go.
It’s game, set, match for Adidas when it comes to the protectable trade dress in its iconic Stan Smith tennis shoe. In a dispute between Adidas and Skechers over the “Skecherizing” of the Stan Smith shoe, the District Court for the District of Oregon denied Skechers’ motion for summary judgment finding that Adidas could show it has protectable trade dress in its well-known shoe design because the design was recognizable to consumers and not functional. Adidas America Inc. et al. v. Skechers USA Inc., D. Or (August 3, 2017) (order granting in part and denying in part motion for summary judgment).
On 31 October 2016, the U.S. Supreme Court heard arguments in the ongoing dispute between Star Athletica LLC and Varsity Brands Inc, two major designers and manufacturers of cheerleading uniforms. In what could be considered a bizarre mash up of early 2000s films “Bring it On!” and “Legally Blonde”, the two companies are involved in a stoush as to whether or not the two-dimensional designs of coloured stripes and zig-zags that are applied to cheerleading uniforms can be protected under US copyright law. My U.S. colleagues John Cotter and Shamus Hyland previously discussed the Sixth Circuit Court of Appeal’s decision in this matter here.
It will come as no surprise to readers that U.S. and Australian laws differ in many respects and this is particularly the case when it comes to copyright and designs laws.
In Australia, fashion designers may have recourse to the Designs Act 2003 (Cth) and/or the Copyright Act 1968 (Cth) depending on whether or not they are looking to protect two-dimensional (prints, images etc.) or three-dimensional (cut, shape, fit etc.) designs and how they intend to exploit the designs.
By Naomi Pearce
There are two weeks left to make submissions to the Productivity Commission (the Commission) on the Commission’s Intellectual Property Issues Paper published in October.
In a four-part series recently published in Habitus Living, we explore the issues faced by makers of original and authentic designs by the rise of the replica furniture industry in Australia.
The popularity of reality renovation shows has sparked interest and demand for designer furniture, homewares and lighting products. Consumers seeking such products at affordable prices have been serviced by businesses dedicated to the sale of replica furniture products that are manufactured cheaply overseas and widely available online.