On 28 February 2014, the Court of Appeal dealt a serious blow to Magmatic, the company behind the well-known "Trunki" childrens' luggage.

The Court has overturned the result of last July's High Court ruling that the registered design protecting the Trunki had been infringed by a rival's "Kiddee Case" product. (Images of the design and the Kiddee Case can be seen attached to the Court of Appeal judgment http://www.bailii.org/ew/cases/EWCA/Civ/2014/181.html).

The Trunki's creator, Rob Law, is no stranger to setbacks. His product was famously featured on the BBC Dragons' Den programme back in 2006 when he left "the Den" without backing from the dragons after a strap had broken on the original product while he was demonstrating it. But he went on to achieve considerable commercial success and the Trunki has sold very well in the UK and overseas. Indeed, over the years Trunkis and their owners have become a familiar sight at airports throughout the world.

Mr Law and his company have said they will fight on and their next step will be to ask for permission to appeal to the Supreme Court as they struggle to overturn the very unhelpful ruling.

Although there was no doubt that PMS, the maker of the Kiddee Case, had been inspired to make it by the success of the Trunki, copying is not relevant for the purposes of registered design infringement.

Registered design infringement occurs where a product "does not create a different overall impression on the informed user" when compared to the design as registered. But an assessment of that overall impression, whilst governed by well-established principles, is not an exact science.

Ultimately, it boils down to what an individual judge thinks. The Court of Appeal's decision is a classic illustration of that. When the case was originally heard in the High Court, the judge held that the Kiddee Case did not create a different overall impression. But the Court of Appeal judges have now held to the contrary.

It is worth noting that a new Intellectual Property Bill has nearly completed its progress through Parliament. The Bill will introduce for the first time criminal offences for cases where registered designs have been copied. The new offences (which carry a maximum jail term of 10 years) are controversial. As the Trunki litigation shows, these cases can be very unpredictable.

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