A significant aspect of the High Court’s decision was that it compared only the respective shapes of the CRD and the Kiddee Case, ignoring the surface decoration of the latter.

Lord Neuberger commented obiter that "it seems plain to me that absence of decoration can, as a matter of principle, be a feature of a registered design. In that case, the surface decoration of the infringing product was disregarded during the comparison. Those who have adopted similar design conventions will be eagerly waiting to learn how this judgment affects the interpretation of their CRDs, and the resultant scope of their rights. e. as shown in the leftmost image above: grey for the greater part of the body (including the horns), and black for the wheels and spokes, the strap on top, and the strips on the front and rear.g. its colouring and spots) also influenced the overall impression it created: in one design to give the impression of a ladybird with antennae, in another a tiger with ears. Kitchin LJ was of the view that the absence of decoration on the CRD reinforced the horned animal impression made by the CRD, and that the judge had also failed to take this into account also. Designers should consider carefully the level of generality used when filing designs – if it is too general, a design may be invalidated by prior art and if it is too specific, there will be no protection against even very similar designs. In particular, the judgment is expected to clarify the way that certain design conventions used in CRDs should be interpreted, an issue which has been decisive in a number of important Court of Appeal decisions.

The Court of Appeal also highlighted the importance of colour in its assessment of the overall impression created on users. I see no grounds for questioning Kitchin LJ’s conclusion, even if I considered that another judge (or even I) might have reached a different conclusion. The court of appeal ruling meant Cad drawings would no longer be offered the same protection as line drawings, which meant third parties would be able to claim differences in surface decoration should be taken into account, according to the Anti-Copying In Design group.The decision represents the final step in a three-year dispute against PMS International as to whether their “Kiddee case” infringed Magmatic’s design rights in the Trunki case. And, if they want to change the ornamentation take separate RCDs to individuate their new ornamentation under class 32? This constituted an important difference between the overall impression given by each suitcase, and contributed to the Supreme Court’s ruling that the Kiddee Case did not infringe the Trunki RCD [see paras 21, 37 and 39]. The national rules concerning further appeal shall be applicable in respect of judgments of Community design courts of second instance. Since the Court of Appeal had approached the question of infringement on the correct basis of law, the Supreme Court should be very slow to interfere with their conclusion that the Kiddee did not infringe the CRD.

No matter how original and innovative a product is, a design registration only protects the appearance of the product rather than the clever idea or concept underlying it. It recognised that the CRD, which was filed in 2003, shared design elements with an earlier prototype exhibited by Magmatic in 1998 [see Fig 1]. Magmatic's appeal was therefore dismissed and the CoA's decision that there was no infringement was upheld.As Dr Martin Schlötelburg, the co-ordinator of OHIM’s Designs Department, has written, “the selection of the means for representing a design is equivalent to the drafting of the claims in a patent: including features means claiming them”.