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 its flanks and front adorned with no imagery. Therefore, the Court of Appeal held the community-registered design was ‘clearly intended to create the impression of a animal’ . Similar approach taken in Samsung, the surface decoration of the alleged infringing product was relevant to overall impression. The law on the absence of ornamentation developed significantly since the Samsung case, where Jacob LJ affirms that if the absence of ornamentation is ‘contended and undisputed’ as an important obdurate feature of a design, the surface decoration would not be considered by the informed user . This principle has been expanded in Magmatic, the current rule is, if the surface decoration on a registered design influence the overall impression created by the shape of the product, the surface decoration on the alleged infringement could be relevant.

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