degree of freedom is also vital to the scope of protection. In Dyson Ltd v Vax Ltd , Arnold J states that the scope of protection is broadened when a designer has more degree of freedom, and a narrower scope of protection where there is a little room for new creation. These impediments to the freedom of design could be created by the technical function of the product, imposing specific criteria to the design. Hence, the more unique the registered design is compared to the subsisting products in the market, the greater the scope of protection is.

Relevance of the surface decoration

A major consideration in Magmatic was whether the surface decoration of the product is taken into account when deciding its overall impression. The Supreme Court refused to determine whether the absence of surface decoration was a feature of the Trunki registered design, even if it was the reason the appeal was permitted at the first place. Lord Neuberger decided to leave this issue open, as he thinks a decision of such will not be ‘of much assistance in other cases’ . The Trunki suitcase adopted no graphical designs on its surface. This kind of design had emerged and considered in the case of P&G and Samsung. In P&G, Jacob LJ held that the proper comparison should be made with the shape of the alleged infringement, and it is irrelevant to consider the graphics on the product . Whereas the Samsung case suggests the absence of ornamentation on the Apple registered design was an important feature, the trademark on the Samsung infringing product was taken into consideration. This is also considered in Kohler , the Counsel for Bristan argued their allegedly infringing shower unit created a different impression to the Kohler’s registered design, as it featured the trademark and the markings (indication) around the control, while the registered product designed to be free of ornamentation. Nevertheless, His Honour Judge Birss QC disregarded the markings when accessing overall impression, he believe ‘an informed user would expect markings of some kind on the front face even though they are not shown in the design’ .

In Magmatic, High Court judgement, Arnold J asserts the community registration design was ‘evidentially for the shape of the suitcase’ , so the surface decoration of the Kiddee suitcase was disregarded. This approach was rejected; the Supreme Court noted that the High Court judge has overlooked the distinctive horned animal impression of the community-registered design. The Court of Appeal added that the Trunki suitcase looks like a horned animal with a nose and a tail; these designs are adopted to interact with the shape of the suitcase, while