Trade Marks and Copyright - AGA Rangemaster Group Ltd v UK Innovations Group Ltd
Intellectual Property Enterprise Court (Mr Nicholas Caddick KC) AGA Rangemaster Group Ltd v UK Innovations Group Ltd and another [2024] EWHC 1727 (IPEC) (8 July 2024)
UK Innovations Group Ltd. ("UKIG") describes itself on its website as "a progressive, dynamic, energetic, obsessive and innovative business turning the heat storage range cooker concept on its head.". It has developed an electronic control ("eControl") system which it installs in heat storage range cookers known as "Stone Cookers". However, its eControl systems can also be fitted to AGA cookers that have been converted from fossil fuel heat sources to electricity. UKIG has converted 26 second-hand AGA cookers to electric power with eControl systems and offered them for sale under both AGA and eControl branding as in the photos above. AGA Rangemaster Group Ltd ("ARG") objects to UKIG's marketing and has brought trade mark and copyright infringement proceedings against UKIG and Michael Patrick McGinley ("Mr McGinley"), UKIG's managing director.
ARG's Trade Marks
ARG has registered the following trade marks:
Claim
ARG complained that the marketing and sale of the refurbished AGA cookers infringed the above trade marks under s.10 (1), (2) and (3) of the Trade Marks Act 1988. The claimant also claimed that the control panels fitted to the eControl panels of the refurbished cookers infringed the copyright in a design drawing for the control panel of its own electronically controlled cookers.
Defences
UKIG and Mr McGinley did not deny that their actions fell within s.10 (1) and (2) of the Act but they relied on s.12 (1) on the ground that the AGA cookers had previously been placed on the market by ARG or with its consent. They also argued that the word mark AGA was descriptive and/or indicated that the eControl System could be used to convert genuine AGA Cookers relying on s.11 (2) (b) and (c). As for trade mark number1433271, they argued that there could be no infringement because an image showing an eControl Cooker and/or the appearance of such a cooker was not "a sign". It did not distinguish or indicate the origin of goods and was not being used in relation to goods. There was insufficient similarity between the image or appearance of the eControl Cookers and the marks. Liability was excluded by the terms of the disclaimer to which the mark was subject and trade mark numbers 1433271 and 3044627 were invalid. The defendants also denied liability under s.10 (3) on the grounds that there was no unfair advantage, no dilution and no tarnishment.
Trial
The action and counterclaim were tried by Mr Nicholas Caddick KC sitting as a deputy judge of the High Court on 15 and 16 April 2024. There were further written submissions on 29 May, 5 June and 1 July 2024. Mr Caddick handed down his judgment on 8 July 2024. By para [133] of his judgment in AGA Rangemaster Group Ltd v UK Innovations Group Ltd and another [2024] EWHC 1727 (IPEC) (08 July 2024) he held that ARG's marks had been infringed but dismissed its claim for infringement of copyright.. He found that Mr McGinley was not liable as a joint tortfeasor but dismissed the counterclaim.
Exhaustion of Rights Defence
The deputy judge noted that the alleged infringements took place between October 2021 and June 2022. At that time s.12 provided:
(2) Subsection (1) does not apply where there exist legitimate reasons for the proprietor to oppose further dealings in the goods (in particular, where the condition of the goods has been changed or impaired after they have been put on the market)."
He observed that the section was derived from art 7 of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks OJ L 40, 11/02/1989, p. 1–7:
"(1) The trade mark shall not entitle the proprietor to prohibit its use in relation to goods which have been put on the market in the Community under that trade mark by the proprietor or with his consent.
(2) 2. Paragraph 1 shall not apply where there exist legitimate reasons for the proprietor to oppose further commercialization of the goods, especially where the condition of the goods is changed or impaired after they have been put on the market."
"(1) The trade mark shall not entitle the proprietor to prohibit its use in relation to goods which have been put on the market in the Community under that trade mark by the proprietor or with his consent.
(2) 2. Paragraph 1 shall not apply where there exist legitimate reasons for the proprietor to oppose further commercialization of the goods, especially where the condition of the goods is changed or impaired after they have been put on the market."
Mr Caddick referred to para [38] of C-337/95 Parfums Christian Dior SA v Evora BV [1997] EUECJ C-337/95
"... when trade-marked goods have been put on the Community market by the proprietor of the trade mark or with his consent, a reseller, besides being free to resell those goods, is also free to make use of the trade mark in order to bring to the public's attention the further commercialisation of those goods."
Mr Caddick emphasized that the test was not whether further dealings might involve a change in condition, serious damage to the reputation of the trade mark or give the false impression of a commercial connection between the defendant and the trade mark proprietor. It was whether, on the facts as a whole, the proprietor had legitimate reasons to oppose the further dealings. He said that in determining whether a case falls within s.12 (2), the court had to strike a fair balance between protecting the trade mark proprietor's interests in a trade mark that had been applied to goods and protecting the interests of others such as the original purchaser and others who dealt with those goods in the aftermarket.
The deputy judge found that ARG had legitimate reasons for objecting to the defendants' activities because of the way in which UKIG had marketed and sold the 26 refurbished cookers. In a reconditioned AGA the only parts of the original oven were those coloured green in the following diagram.
UKIG's website was offering customers the opportunity to "Buy an eControl AGA" with a warranty and in a range of colours and/or the opportunity of converting an existing AGA Cooker using the eControl system. In the deputy judge's judgment, those statements taken as a whole were likely to give customers the impression that they had been offered an AGA product and this was something about which ARG could legitimately object. The reference to the "eControl AGA" was likely to be seen, not as descriptive but rather as part of the brand of the product being offered for sale. If the defendants wanted to sell converted cookers, they had to ensure that customers were not given the impression that the conversion was somehow connected to the claimant.
Mr Caddick concluded at para [60] of his judgment that the way in which the defendants marketed and sold their eControl Cookers would have given customers and potential customers the impression that there was a commercial connection between the cookers and the eControl system fitted to them and AGR In these circumstances, ARG had legitimate reasons to object to those activities. On thar basis, he rejected the s.12 defence to the trade mark infringement claim.
S.11 Defence
S.11 (2) of the Trade Marks Act 1994 provides:
"A registered trade mark is not infringed by -
(a) ...
(b) the use of signs or indications which are not distinctive or which concern the kind, quality, quantity, intended purpose, value, geographical origin, the time of production of goods ... or other characteristics of goods...
(c) the use of the trade mark for the purposes of identifying or referring to goods ... as those of the proprietor, in particular where that use is necessary to indicate the intended purpose of a product ... (in particular,, as accessories or spare parts),
provided the use is in accordance with honest practices in industrial or commercial matters".
"A registered trade mark is not infringed by -
(a) ...
(b) the use of signs or indications which are not distinctive or which concern the kind, quality, quantity, intended purpose, value, geographical origin, the time of production of goods ... or other characteristics of goods...
(c) the use of the trade mark for the purposes of identifying or referring to goods ... as those of the proprietor, in particular where that use is necessary to indicate the intended purpose of a product ... (in particular,, as accessories or spare parts),
provided the use is in accordance with honest practices in industrial or commercial matters".
The deputy judge rejected that argument. The defendants' use of the word AGA on its website and invoices did not fall within s.11 (2). Such use was not descriptive. The implication in such phrases as "eControl AGA", "AGA Cooker eControl" or "Controllable AGA cookers" was not that the eControl system could be fitted to an AGA cooker. Rather it was distinctive use as part of a badge of origin. It was use that suggested that the eControl cookers and the eControl system were associated with ARG as the proprietor of the AGA word marks.
The deputy judge had no hesitation in rejecting that argument. An image could clearly be a sign and as the website images were being used to advertise the defendants' eControl cookers, it was clear that they were being used as signs in relation to goods. The position as regards the eControl cookers themselves was more difficult but again he rejected the defendants' contention. While at first sight, it was not easy to see how something could be a sign used in relation to a product when that sign was the product itself, the Court of Justice of the European Union proceeded in Case C-46/10, Viking Gas A/S v Kosan Gas A/S, [2011] EUECJ C-46/10 on the basis that dealings with the bottle was use in relation to goods.where part of the claim was about a trade mark in the shape of a gas bottle.
The second ground on which the defendants denies liability was that there was no or no sufficient similarity between the signs and the mark. Mr Caddick rejected that argument. In his view, the average consumer would have seen the 2-oven version of the eControl cookers as identical or at least highly similar to the mark and the 4 oven version and the images that appear on the website as similar.
The second ground on which the defendants denies liability was that there was no or no sufficient similarity between the signs and the mark. Mr Caddick rejected that argument. In his view, the average consumer would have seen the 2-oven version of the eControl cookers as identical or at least highly similar to the mark and the 4 oven version and the images that appear on the website as similar.
He held that the defendants' use on its website of images of its eControl cookers and the eControl cookers themselves was capable of infringing trade mark number 1433271 under s.10 (1) and/or s.10 (2).
Trade Mark Number 3044627
This mark consisted of photos of the claimant's product from different angles. The defendants relied on sections 11 and 12 in their defence but in their skeleton they raised the same arguments as for 1433271 even though there was no disclaimer. As they had not applied to amend their defence and counterclaim Mr Caddick did not allow them to use those arguments. If he had allowed them to use those arguments he would have dismissed them for the same reasons as he had dismissed the arguments on 1433271.
S.10 (3) Trade Marks Act 1994
S.10 (3) of the Trade Marks Act 1994 provides:
"A person infringes a registered trade mark if he uses in the course of trade, in relation to goods or services, a sign which—
(a) is identical with or similar to the trade mark,
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"A person infringes a registered trade mark if he uses in the course of trade, in relation to goods or services, a sign which—
(a) is identical with or similar to the trade mark,
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
where the trade mark has a reputation in the United Kingdom and the use of the sign, being without due cause, takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark."
The defendants put the claimant to strict proof that the claimant's marks had a reputation in the United Kingdom and a distinctive character.
Mr Caddick noted that the law in this regard had been explained by the Court of Justice in C-375/97, General Motors Corp v Yplon SA [1999] ECR I-5421, [1999] EUECJ C-375/97, [2000] RPC 572 between [24] and [27] and endorsed by Mr Justice Arnold in Sky plc v SkyKick UK Ltd [2018] EWHC 155 (Ch), [2018] RPC 5, [2018] ETMR 23at [307]:
"[24] The public amongst which the earlier trade mark must have acquired a reputation is that concerned by that trade mark, that is to say, depending on the product or service marketed, either the public at large or a more specialised public, for example traders in a specific sector.
[25] It cannot be inferred from either the letter or the spirit of Article 5 (2) of the Directive that the trade mark must be known by a given percentage of the public so defined.
[26] The degree of knowledge required must be considered to be reached when the earlier mark is known by a significant part of the public concerned by the products or services covered by that trade mark.
[27] In examining whether this condition is fulfilled, the national court must take into consideration all the relevant facts of the case, in particular the market share held by the trade mark, the intensity, geographical extent and duration of its use, and the size of the investment made by the undertaking in promoting it."
Mr Caddick noted that the law in this regard had been explained by the Court of Justice in C-375/97, General Motors Corp v Yplon SA [1999] ECR I-5421, [1999] EUECJ C-375/97, [2000] RPC 572 between [24] and [27] and endorsed by Mr Justice Arnold in Sky plc v SkyKick UK Ltd [2018] EWHC 155 (Ch), [2018] RPC 5, [2018] ETMR 23at [307]:
"[24] The public amongst which the earlier trade mark must have acquired a reputation is that concerned by that trade mark, that is to say, depending on the product or service marketed, either the public at large or a more specialised public, for example traders in a specific sector.
[25] It cannot be inferred from either the letter or the spirit of Article 5 (2) of the Directive that the trade mark must be known by a given percentage of the public so defined.
[26] The degree of knowledge required must be considered to be reached when the earlier mark is known by a significant part of the public concerned by the products or services covered by that trade mark.
[27] In examining whether this condition is fulfilled, the national court must take into consideration all the relevant facts of the case, in particular the market share held by the trade mark, the intensity, geographical extent and duration of its use, and the size of the investment made by the undertaking in promoting it."
Copyright
It was referred to in the action as the "AGA Panel Work 1" and shows the design of the control panel for the claimant's electric AGA cookers. The following is a photo of the control panel of the claimant's electric cookers.
G complained that UKIG infringed its copyright by making the control panel for its eControl panels shown below:
The defendants denied that copyright subsisted in the CAD drawing on the grounds that the work was dictated entirely by function and was not an expression of the author's intellectual creation. Alternatively, if copyright did subsist it was limited. Any similarities between the control panel and the design drawing was because the designs "are either trite or commonplace, dictated by function or form, or in respect of which a designer would have little creative freedom." In the further alternative, they relied on s.51 of the Act,
Subsistence
The defendants tried to argue that the design was not original in that it reproduced antecedent designs but Mr Caddick would not entertain that argument on the ground that it had not been pleaded or raised in the defendants' skeleton argument. He expressed the view that the designer probably owned the copyright in the design drawings of those antecedent designs.
Infringement
The deputy judge found that Mr McGinley had copied a substantial part of the claimant's drawing including aspects that reflected the designer's aesthetic and creative choices.
However, the defendants relied on s.51 of the Copyright Designs and Patents Act 1988 which provides as follows:
"(1) It is not an infringement of any copyright in a design document or model recording or embodying a design for anything other than an artistic work or a typeface to make an article to the design or to copy an article made to the design."
(2)....
(3) In this section—
"design" means the design of the shape or configuration (whether external or internal) of the whole or part of an article, other than surface decoration; and
"design document" means any record of a design, whether in the form of a drawing, a written description, a photograph, data stored in a computer or otherwise."
"(1) It is not an infringement of any copyright in a design document or model recording or embodying a design for anything other than an artistic work or a typeface to make an article to the design or to copy an article made to the design."
(2)....
(3) In this section—
"design" means the design of the shape or configuration (whether external or internal) of the whole or part of an article, other than surface decoration; and
"design document" means any record of a design, whether in the form of a drawing, a written description, a photograph, data stored in a computer or otherwise."
"(a) The drawing relied on by the Claimant is clearly a design document in that it is a record of the design of the shape or configuration of an article - that article being a control panel.
(b) The drawing is clearly a design document for a control panel.
(c) The control panel is not itself an artistic work, at least not as that term is understood in English law and as it is defined in s.4 of the CDPA 1988. Although the decision in Cofemel supports a less restrictive view as to what may constitute a work for the purposes of copyright, I do not think that I can construe s.4 and/or s.51 in a way that permits the control panel to be treated as an artistic work. Contrast, for example, the position in Response Clothing Ltd v Edinburgh Woollen Mill Ltd [2020] EWHC 148 (IPEC).
(d) Section 51 does not apply to designs for the surface decoration of an article. However, in my judgment this does not apply to any aspect of the design recorded in the drawing in issue in the present case. For example, it seems to me that the oval line surrounding the dials and the line leading from that oval to the thermodial clearly perform a function beyond merely decorating the surface of the control panel. They help inform the user as to its operation.
(e) In summary, copyright subsisted in the drawing as an artistic work. However, because that drawing was a design document for something (the control panel) which was not an artistic work, s.51 operates. Accordingly, it was not an infringement of copyright in the drawing for the Defendants to make control panels to the design recorded in that drawing."
"(a) Where something satisfies the conditions for the subsistence of copyright (i.e. where it is original in the sense that it is the expression of its author's own intellectual creation and is identifiable with sufficient precision and objectivity), then that thing is a work that is entitled to copyright protection - see [30], [32] and [35].
(b) This applies equally to a work which is a design (see [48]). However, in design cases, particular care must be exercised in assessing whether the design really does satisfy the above test and whether it merits being classified as a work for the purposes of copyright (see [49]-[52]). In this regard, the fact that the design generates an aesthetic effect is not enough. Its author must have exercised creative choices (see [53]-[55]).
(c) Where a design satisfies this test, it is entitled to a cumulation of protection under both design law and copyright law (see [45], [47] and [52]) and member states are precluded from enacting a provision under which that design would only qualify for copyright if it generated a specific, aesthetically significant visual effect (see [56])."
He set out the possible arguments on the effect of Cofemel in [101]:
"The significance of Cofemel with regard to s.51 and how an English court should respond to it are unclear. On the one hand, it could be argued that s.51 does not set any additional requirement for the subsistence of copyright; where it applies, copyright subsists in the design document but is simply not infringed by the particular acts specified in s.51. On the other hand, under art.2 of the Information Society Directive, it is an infringement of copyright in a work to reproduce (i.e. to copy) that work and a provision such as s.51 goes far beyond anything which that Directive envisages as a permitted exception to this (see art.5 of the Directive). Moreover, it seems clear that the CJEU in Cofemel saw the answer to the problem that s.51 was intended to address (the unwanted application of copyright protection in the sphere of industrial design) as lying in applying the test for originality rigorously in the case of a design (see paragraph 100(b) above). This would suggest that, once that test is satisfied, a limitation on the scope of the protection provided by copyright would not be permitted."
"The significance of Cofemel with regard to s.51 and how an English court should respond to it are unclear. On the one hand, it could be argued that s.51 does not set any additional requirement for the subsistence of copyright; where it applies, copyright subsists in the design document but is simply not infringed by the particular acts specified in s.51. On the other hand, under art.2 of the Information Society Directive, it is an infringement of copyright in a work to reproduce (i.e. to copy) that work and a provision such as s.51 goes far beyond anything which that Directive envisages as a permitted exception to this (see art.5 of the Directive). Moreover, it seems clear that the CJEU in Cofemel saw the answer to the problem that s.51 was intended to address (the unwanted application of copyright protection in the sphere of industrial design) as lying in applying the test for originality rigorously in the case of a design (see paragraph 100(b) above). This would suggest that, once that test is satisfied, a limitation on the scope of the protection provided by copyright would not be permitted."
In the absence of any submissions on the issue, the learned deputy judge did not think it was possible to reach any final conclusion as to the impact of Cofemel on s.51. He had to consider s.51 on its own wording. On that basis, he found that although copyright subsisted in the CAD drawing and that the drawing had been copied he had to dismiss the claim as the actions of the defendants had been permitted by d.51.
Joint Tortfeasance
The claimant had alleged that Mr McGinley was a joint tortfeasor on the basis that he had been in day to day control of the UKIG's operations and actions including those actions that were alleged to be infringements. It did not allege that he had knowledge of the facts that would give rise to accessory liability. Nor was he questioned on his knowledge in cross-examination.
Supreme Court's judgment in Lifestyle Equities v Ahmed ([2024] UKSC 17 was delivered after the trial but before Mr Caddick could hand down judgment in this action. He allowed the parties to make supplementary written submissions but neither side sought to amend its ploeadings. At para [117] the deputy judge had to do the best he could with the evidence that he had:
"Based on the evidence before me, I think that I can legitimately find that Mr McGinley had some of the requisite knowledge - such as, for example, knowledge of the AGA Word Marks and the AGA Badge Marks (but query the 2D and 3D AGA Marks), knowledge that the Defendants were using those marks or marks that were similar to them in relation to identical goods, and knowledge of the Claimant's reputation and of the distinctive character of its marks. However, it seems to me that there are numerous vital facts which have not been shown to have been known to Mr McGinley, so that the position is similar to that to which Lord Leggatt referred in the passage quoted above. For example, having heard Mr McGinley's evidence, I cannot find that he knew or had reason to believe that the Defendants' activities were liable to affect the origin function of the Claimant's Marks, let alone that they gave rise to a likelihood of confusion, nor that the Defendants' activities would be detrimental to the reputation or distinctive character of the Claimant's Marks. On all of these matters, there would (to use Lord Leggatt's words) be room for argument and honest difference of opinion. On this basis, I find that Mr McGinley did not have the requisite knowledge of the essential facts relating to the Claimant's infringement case, nor of the facts which meant that there was no exhaustion defence."
Supreme Court's judgment in Lifestyle Equities v Ahmed ([2024] UKSC 17 was delivered after the trial but before Mr Caddick could hand down judgment in this action. He allowed the parties to make supplementary written submissions but neither side sought to amend its ploeadings. At para [117] the deputy judge had to do the best he could with the evidence that he had:
"Based on the evidence before me, I think that I can legitimately find that Mr McGinley had some of the requisite knowledge - such as, for example, knowledge of the AGA Word Marks and the AGA Badge Marks (but query the 2D and 3D AGA Marks), knowledge that the Defendants were using those marks or marks that were similar to them in relation to identical goods, and knowledge of the Claimant's reputation and of the distinctive character of its marks. However, it seems to me that there are numerous vital facts which have not been shown to have been known to Mr McGinley, so that the position is similar to that to which Lord Leggatt referred in the passage quoted above. For example, having heard Mr McGinley's evidence, I cannot find that he knew or had reason to believe that the Defendants' activities were liable to affect the origin function of the Claimant's Marks, let alone that they gave rise to a likelihood of confusion, nor that the Defendants' activities would be detrimental to the reputation or distinctive character of the Claimant's Marks. On all of these matters, there would (to use Lord Leggatt's words) be room for argument and honest difference of opinion. On this basis, I find that Mr McGinley did not have the requisite knowledge of the essential facts relating to the Claimant's infringement case, nor of the facts which meant that there was no exhaustion defence."
At [119] he dismissed the claim of accessory liability against Mr McGinley.
Counterclaim
The defendants counterclaimed for 1433271 and 3044627 to be declared invalid under s.47 (1) of the Trade Marks Act 1994:
"The registration of a trade mark may be declared invalid on the ground that the trade mark was registered in breach of section 3 or any of the provisions referred to in that section (absolute grounds for refusal of registration).
Where the trade mark was registered in breach of subsection (1) (b), (c) or (d) of that section, it shall not be declared invalid if, in consequence of the use which has been made of it, it has after registration acquired a distinctive character in relation to the goods or services for which it is registered."
"The registration of a trade mark may be declared invalid on the ground that the trade mark was registered in breach of section 3 or any of the provisions referred to in that section (absolute grounds for refusal of registration).
Where the trade mark was registered in breach of subsection (1) (b), (c) or (d) of that section, it shall not be declared invalid if, in consequence of the use which has been made of it, it has after registration acquired a distinctive character in relation to the goods or services for which it is registered."
"..... any sign which is capable —
(a) of being represented in the register in a manner which enables the registrar and other competent authorities and the public to determine the clear and precise subject matter of the protection afforded to the proprietor, and
(b) of distinguishing goods or services of one undertaking from those of other undertakings.
A trade mark may, in particular, consist of words (including personal names), designs, letters, numerals, colours, sounds or the shape of goods or their packaging."
Under s.3 (2), a sign cannot be registered if it consists exclusively of:
(a) The shape, or another characteristic, which results from the nature of the goods themselves;
(b) The shape, or another characteristic, of goods which is necessary to obtain a technical result; and/or
(c) The shape, or another characteristic, which gives substantial value to the goods.
The defendants asserted that 1433271 and 3044627 were invalid because they did not satisfy the test in s.1 (1) and that 3044627 was also invalid because it dis not satisfy the test in s.3 (2).
Mr Caddick rejected that argument. One of the requirements of a trade mark is that an average consumer must be able to identify a mark with clarity and precision. In the deputy judge's judgment the average consumer looking at that mark would take it for exactly what it is: a 2-dimensional representation of a 3-dimensional object, namely an AGA Cooker.
The defendants had argued that 3044627 was uncertain because the visual representation of the mark was inconsistent with its verbal description as required by Glaxo Wellcome UK Ltd v Sandoz Ltd [2017] EWCA Civ 335. In that case, Lord Justice Kitchin had said at para [69] that the graphical representation of a mark, comprising both the pictorial representation and the verbal description, must be considered as a whole. Mr Caddick said at [128] that "the average consumer would not see any inconsistency between the visual representation and verbal representation set out above. In particular, the words quoted above make it clear that the mark relates to 'this' range cooker which, in my judgment, the average consumer would take as a reference to the cooker depicted and to no other."
It was also argued that the mark was invalid because it did comply with the requirements of s.3 (2) as "range cookers are required by their very nature and purpose to be a certain shape. For example, range cookers must have a flat top surface with round hobs, they must have doomed heads to keep in the heat from the hobs, and they must have oven doors on". Mr Caffick rejected that contention at [130}:
"I really cannot see that the shape of any of these essential characteristics can be said to be exclusively the result of the fact that the thing depicted is a cooker. Still less do I think that any of these features was necessary to obtain a technical result. Rather, it seems to me that the shape of these features are distinctive of the AGA Cooker and involved aesthetic considerations."
"I really cannot see that the shape of any of these essential characteristics can be said to be exclusively the result of the fact that the thing depicted is a cooker. Still less do I think that any of these features was necessary to obtain a technical result. Rather, it seems to me that the shape of these features are distinctive of the AGA Cooker and involved aesthetic considerations."
He dismissed the counterclaim at para [132].
Comment
This is an interesting judgment with some useful analysis of exceptions to the exhaustion of rights principle and the status of s.51 of the Copyright Designs and Patents Act 1988 in the light of Brompton Bicycle and Cofemel. Had the UK remained in the EU Mr Caddick might have been tempted to refer the matter to the Court of Justice for a preliminary reference. Anyine wishing to discuss this article may call me during office hours on 020 7404 5252 or send me a message through my contact page.
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