February 2018. Happy Cocooning HCC, which makes gas cookers, has been locked in a long and bitter struggle with rival hob manufacturer Arpe. HCC had accused Arpe’s Thyone range of infringing the design rights of a gas cooker which HCC had registered as a European design. But does it really? On 22 February, the District Court in Hague issued its ruling.
Left HCC’s hob, right Arpe’s Thyone
Different overall impression
To decide if a new design infringes an older, previously registered design, it’s necessary to determine whether the new design gives a ‘different overall impression’. If it does not, there’s likely to be an infringement.
In this particular case, the Court concluded that Arpe’s ‘wood-look’ gas cooker gave a different overall impression to its rival. One important difference, according to the ruling, was that the cooker registered by HCC had a sober minimalist feel while the Thyone’s ‘plank-look’ gave it a more rustic appearance.
The Court felt that Thyone’s ‘wood-look’ made all the difference, since it gave the cooker a very different appearance to the HCC’s ‘mat, stone-like’ look. The dark colour of the previously registered design was significant too, since this too wasn’t shared by the Thyone. Conclusion: no infringement. The Court sent HCC away with an order to pay costs in excess of € 10,000,-.
Could things have turned out differently?
Yes, we believe that if HCC had opted for a different type of registrations, it might have won the day. As it was, the registration was based solely on colour photos of its design. But you can also register a design using a line drawing, focusing primarily on the contours, not on the material used. So if HCC had included a registration with line drawings, we think the decision could have gone the other way. But it’s easy to be wise after the event.
Left: the HCC design, registered using a colour photo. Right: examples of designs registered using line drawings