BABYZEN v. ZHONGSHAN YUYU BABY PRODUCTS CO LTD

BABYZEN v. ZHONGSHAN YUYU BABY PRODUCTS CO LTD

Applying the eye appeal test to the registered design and the three prior registered designs, the court concluded the overall visual impression is very similar if not identical; the differences advanced by the Plaintiff are immaterial or dictated by function and therefore the registered design lacked the requisite novelty and registrability. The Defendant established a prima facie case entitling it to revocation and summary disposal of the action.

Citation
BABYZEN v. ZHONGSHAN YUYU BABY PRODUCTS CO LTD
Parties
Plaintiff: Plaintiff; Defendant: Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
28 August 2017
Case Number
HCA74/2017
Procedural Posture
Registered Design Infringement and Revocation / Application for Summary Judgment / Strike Out (revocation Application)
Outcome
Registration revoked; Plaintiff's action struck out and dismissed.
Legal Topics
Registered Design, Novelty, Revocation, Summary Judgment, Abuse of Process
Source Language
EN
Intellectual Property Design Law Civil Procedure Registered Design Novelty Revocation Summary Judgment Abuse of Process

Case Brief

Summary, issues, holding and outcome

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Parties

Plaintiff

Plaintiff

Defendant

Defendant

Procedural Posture

Registered Design Infringement and Revocation / Application for Summary Judgment / Strike Out (revocation Application)

Legal Issues

  1. 1 Whether the registered design was new and registrable at the filing date
  2. 2 Whether three prior registered designs and/or publications anticipate the Plaintiff's design (novelty)
  3. 3 Whether differences relied on by Plaintiff are immaterial or common trade variants

Ratio Decidendi

Applying the eye appeal test to the registered design and the three prior registered designs, the court concluded the overall visual impression is very similar if not identical; the differences advanced by the Plaintiff are immaterial or dictated by function and therefore the registered design lacked the requisite novelty and registrability. The Defendant established a prima facie case entitling it to revocation and summary disposal of the action.

Court Disposition

Registration revoked; Plaintiff's action struck out and dismissed.

Orders

  • The registration of the Plaintiff's Registered Design is revoked.
  • The present action against the Defendant is struck out and dismissed.