Nothing escapes the eye of the relevant consumer

We acted for F & N Dairies (M) Sdn Bhd ("F & N Dairies") in resisting a claim of industrial design infringement for the design of a bottle that the claimants, Tropicana Products Inc. (Tropicana Products) claimed was novel. Tropicana Products sought to apply for leave to the Federal Court to appeal against the decision of the Court of Appeal reversing a finding of infringement against F&N Dairies. The Federal Court dismissed Tropicana's application.

In delivering its decision, the Federal Court confirmed that:

  1. when deciding on registrability of a design, eye appeal to the relevant class of customers is important;
  2. the relevant class of customers is considered to be the consumers of the finished article based on the design that is registered, and not consumers of the article that has been dressed up by external labels and with consumable contents included in the article;
  3. in determining the novelty of a design, the eye of the relevant class of customers is applicable to determine any difference between the design and prior art.

Khoo Guan Huat and Hemalatha Parasa Ramulu acted for F & N Dairies.

 
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