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England and Wales High Court (Patents Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Patents Court) Decisions >> Spin Master Ltd v PMS International Group  EWHC 1477 (Pat) (09 May 2017)
Cite as:  EWHC 1477 (Pat),  WLR(D) 433,  Bus LR 1627
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COMMUNITY DESIGN COURT
The Rolls Building,
7 Rolls Buildings,
London, EC4A 1NL
B e f o r e :
| SPIN MASTER LIMITED
|- and -
|PMS INTERNATIONAL GROUP
First Floor, Quality House, 6–9 Quality Court, Chancery Lane, London WC2A 1HP.
DX 410 LDE
Telephone No: 020 7067 2900. Fax No: 020 7831 6864
MR. CHRIS AIKENS (instructed by AA THORNTON & CO.) for the Defendant
Crown Copyright ©
MR. JUSTICE HENRY CARR:
(i) Registered design cases are concerned with the overall impression of the registered design, the alleged infringement and the design corpus. It is easier to see this than to describe it in words.
(ii) Admissible evidence in such cases is very limited, and is most likely to comprise technical evidence about design constraints. Such evidence is unlikely to require substantial cross-examination. It should be possible to decide a registered design case in a few hours.
(iii) If permission for expert evidence is to be given, then the precise ambit of that evidence should be defined. The expert should be told what question to address and the evidence should be confined to those questions.
(iv) It is clear law that whether the defendant has copied is irrelevant. It is equally irrelevant for the defendant to prove or to give disclosure about how his design was arrived at.
Request for further information
Requests for further information
Amendments to pleadings
Alternative dispute resolution
Length of trial
Lessons for the future
(i) The parties should, in appropriate cases, produce images at an early stage to show the differences or similarities upon which they rely, and in the case of the defendant, those features which are wholly functional or in which design freedom is said to be limited. Requests for further information are unlikely to be helpful.
(ii) Claimants should not try to introduce or seek disclosure in relation to copying. The parties should carefully consider why, if at all, disclosure is necessary, rather than agreeing to standard or even issue based disclosure.
(iii) Expert evidence as to whether the alleged infringement produces on the informed user the same or a different overall impression as the registered design should not be included in cases concerning consumer products.
(iv) The parties should try to limit the length of expert evidence to an agreed number of pages.
(v) If any evidence of fact is to be introduced, the court will need to be satisfied of its relevance.
(vi) The parties should be prepared at the pre-trial review to identify issues on which cross-examination is necessary, and to explain why.
(vii) Where multiple designs, or multiple infringements, are alleged, the parties should each select a limited number of samples on which the issues can be tested.
(viii) The parties should give careful thought to those issues which can be postponed to a damages enquiry, which will only need to be considered if liability is established.