The Lord Justices of Appeal stated that they did not believe it was appropriate to grant permission because they had made a finding that there was no infringement, which was specific to the circumstances of the present case and did not believe it raised any points of general public importance for the Supreme Court to consider.
On learning of the decision last month, Rob Law, founder of Trunki, said that he thought the Court of Appeal were wrong and that he intended to fight on and appeal to the Supreme Court. Rob Law said: “We didn’t expect to be granted permission by the Court of Appeal. It would be unusual as it’s a way of saying the judge accepts the decision may not be right. More often, permission is refused and you apply for the permission from the Supreme Court, which is what we’re doing.”
Last month, the Court of Appeal overturned the previous decision of Mr Justice Arnold and found that PMS’ Kiddee Case did not infringe Magmatic’s Community Registered Design as the Kiddee Case created a very different overall impression from the Trunki. The Lord Justices of Appeal went on to say that the surface decoration on the Kiddee Case should have been taken into account as it significantly affected how the shape of the case struck the eye. The impression created by the Community Registered Design was that of a horned animal compared to the Kiddee Case design which was more rounded and evocative of an insect with antennae or an animal with floppy ears. Consequently the Kiddee Case conveyed a completely different impression. The case was narrowly decided against PMS, in the High Court in July 2013, by Mr Justice Arnold who nevertheless, still granted PMS permission to appeal his own judgment, in recognition of some complex points of law.
In dealing with PMS’ claim for costs, the Court of Appeal also accepted PMS’ submission that it was “the winner” in this complex legal case.
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