James Mellor QC and Maxwell Keay appeared for the Appellant, PulseOn, in their appeal against a finding that two registered community designs (RCDs) depicting aspects of design of heart monitor devices had not been infringed by the Respondents.
The trial judge had found that the RCDs were valid but had not been infringed by the Respondents’ smart watch devices since the latter produced a different overall impression on the informed user. Four grounds of appeal were brought against this decision. These were that the judge was wrong to find that there was little design freedom as to where LEDs would be placed on the devices, that the judge should not have made a comparison to enlarged models of the Respondent’s devices, that the judge had given undue weight to features that were determined by technical considerations, and that the judge applied the wrong test for infringement by asking whether the devices would produce an identical overall impression.
The appeal was rejected. Floyd LJ, with whom the other Lord Justices agreed, found that the correct legal test had been applied, despite the different wording used by the judge. It was further held that the judge was correct to find that the placement of LEDs on the devices was a feature to which the informed user would attach little weight, since there was limited design freedom. The judge was entitled to rely on the enlarged models and there was no reason to interfere with the trial judge’s assessment of overall impression.