Dyson Ltd v Vax Ltd

In this action Dyson Ltd (which I wi ll refer to, together with other companies in the same group, as "Dyson") claims that Vax Ltd ("Vax") has infringed Dyson's United Kingdom Registered Design No. 2, 043,779 ("the Registered Design") by importing and marketing Vax's Mach Zen C-91 MZ vacuum cleaner ("the Mach Zen"). There is no challenge to the validity of the Registered Design.

The Registered Design was applied for on 7 D ecember 1994, and that is its date of registration. It is important to note that the application was made, and the Registered Design was registered, under t he R egistered Des igns Act 19 49 as the n am ended, i n p articular by th e Copyright Act 1956 and the Copyright, Designs and Patents Act 1988 ("the pre-implementation 1949 Act"). This was well before the adoption of European Parliament and Council Directive 98/71/EC of 13 October 1998 on the legal protection of designs ("the Designs Directive"), let alone its implementation.

The Registered Design is regist ered in respect of a "vac uum cleaner". It incl udes a statement of novelty pursuant to rule 15(1) of the Registered Designs Rules 1989 in the following terms:

As is well known, Dyson was the first to introduce two-stage cyclone dust-separation technology for vacuum cleaners as an alternative to the use of porous bags. The first machine to be marketed by Dyson in the United Kingdom using this technology was an upright cleaner known as the DC01 (DC standing for Dual Cyclone). This was launched in 1993. It was very successful. The second machine was a cylinder cleaner called the DC02. This was launched in 1995. It is common ground that in general terms the Registered Design protects the design of the DC02, but there are c ertain differences between the Registered Design and the design of the DC02, particularly so far as the rear view is concerned.

The DC02 is regarded as a classic design. It received numerous accolades and awards as a result of its novel and striking design. It has been exhibited at a number of museums including the Victoria and Albert Museum and the Design Museum in London. Its impact has extended beyond the field of vacuum cleaners.

The Mach Zen is a m ulti-stage cyclone vacuum cleaner launched by Vax in 2009. I reproduce in Appendix 2 t o t his j udgment the p hotographs of t he Mac h Ze n c ontained in Schedule 4 to Dyson's Particulars of Claim.

The Designs Directive includes the following recitals:

It includes the following operative provisions:

The United Kingdom implemented the Designs Directive by amending the 1949 Act by means of the Registered Designs Regulations 2001, SI 2001/3949, made under section 2(2) of the European Communities Act 1972. It is c ommon ground that the 1949 Act as am ended by the 2001 Regulations ("the post-implementation 1949 Act") has to be construed as far as possible in conformity with t he Desi gns Directi ve (Case C-106/ 89 Marleasing SA v La Comercial Internacional de Alimentation SA [1990] ECR I-4135). Accordingly, as is now customary in intellectual property litigation in this country, counsel argued the case by direct reference to the Directive.

Council Re gulation 6/2002/EC of 12 D ecember 2001 on C ommunity desig ns (" the Community Designs Regulation") contains provisions that correspond to those in the Designs Directive. It is com mon grou nd that, w here this is t he case, t he provisions in th e Des igns Directive are to be construed i n the sam e way as the provisions in the Community Designs Regulation.

There are a number of points of legal principle which are relevant to the present case. On some of these there is little or no dispute between the parties, but others are more contentious.

Section 1(1) of the pre-implementation 1949 Act provided:

"Shape" and "configuration" have long been regarded in UK designs law as cl ose to synonymous, and as denoting the form in which in an article is fashioned in three dimensions, while " pattern" an d " ornament" hav e generally b een regar ded as denoting tw o-dimensional surface decoration. In Mackie Designs Inc v Behringer Specialised Studio Equipment (UK) Ltd

There was no requirement for a statement of novelty in the 1949 Act itself either as originally enacted or as amended down to 1994. The requirement was contained in rule 14(2) of the Designs Rules 1949, which was replaced by rule 15(1) of the 1989 Rules. Both rules were made under the general rule-making power conferred by section 36 of the 1949 Act. Rule 15(1) provided:

The effect of a statement of novelty was stated by Slade LJ giving the judgment of the Court of Appeal in Sommer Allibert (UK) Ltd v Flair Plastics Ltd [1987] RPC 599 at 619-620 to be as follows:

After quoting this dictum, the learned editor of Russell-Clarke and Howe on Industrial Designs (7^th ed) comments at §3-285:

It is common ground that the effect of the transitional provisions in the 2001 Regulations is that the issue of infringement of the Registered Design must be determined by reference to the post-implementation 1949 Act, even though its validity, were it in issue, would have to be determined by reference to the pre- implementation 1949 Act. As the editor of Russell-Clarke and Howe notes a t § 3-07, th e re quirement th at i nfringement be governed by t he post-implementation law appears to be required by the Designs Directive by implication from Articles 11 (8) and 1 2(2); but as he c omments at §3 -03 the application of d ifferent laws to infringement and validity is capable of having startling and unfortunate consequences.

There is no provision for a statement of novelty in the post-implementation 1949 Act or in the Registered Designs Rules 2006, although rule 6 of the 2006 Rules does provide for optional partial disclaimers to be made by an applicant for registration.

In Case T- 9/07 Grupo Promer Mon Graphic SA v Office for Harmonisation in the Internal Market [2010] ECR II-0000 the General Court of the European Union held at [62]:

In Case T-1 53/08 Shenzhen Taiden v Office for Harmonisation in the Internal Market [2010] ECR II-0000 the General Court held:

Recital 13 of the Designs Directive (corresponding to recital 14 of the Community Designs Regulation) makes it clear that the overall impression produced on the informed user depends on "the existing design corpus", taking into consideration the nature of the product to which the design is applied, and the industrial sector to which it belongs.

In Grupo Promer the Community design was reg istered for "prom otional items for games". The General Court held at [56]:

Article 7( 1) of t he D esigns D irective e xcludes fr om prot ection " features of appearance... which are solely dictated by its technical function". The parties were divided as to the correct interpretation of this provision.

Counsel for Dyson relied upon the decision of the Court of Appeal in Landor & Hawa International Ltd v Azure Ltd [2006] EWCA Civ 1285, [2007] FSR 9. That case concerned a claim for infringement of unregistered Community design right under the Community Designs Regulation (and a parallel claim for infri ngement of domestic unregistered design right) in certain features of a design for a suitcase. The defendant contended, inter alia, that those features were excluded from protection by Article 8(1) of the Community Designs Regulation, which corresponds to Article 7(1) of the Designs Directive.

At first i nstance His H onour Judge Fysh QC sitting in the Patents County Court rejected this contention for reasons he expressed as follows:

In the Court of Appeal the defendant attacked this conclusion on the grounds that (i) the judge had been wrong to construe Article 8(1) so narrowly and (ii) the features in question were purely functional.

So far as the construction of Article 8(1) was concerned, the defendant argued that the judge ought to have held that "dictated solely by function" meant "attributable to function", so that if more than one shape could perform the same function then all such shapes were excluded from protection. In support of this argument the defendant relied upon the decision of the Court of Justice of the European Communities (as it then was) in Case C-299/99 Koninklijke Philips Electronics NV v Remington Consumer Products Ltd [2002] ECR I-5475 at [78]-[79] interpreting

Neuberger LJ (as he then was), with whom May and Wilson LJJ agreed, held that neither of these decisions could safely be reli ed on i n order to interpret Article 8(1) and noted the comment of Advocate General Colomer in his opinion in the former case at [34] that the wording used in Article 7(1) of the Designs Directive was narrower than that in Article 3(l)(e) of the Trade Marks Directive. Neuberger LJ also said at [38]:

Counsel for Dyson submitted, and I acc ept, that it is clear t hat the Court of Appeal endorsed the judge's construction of Article 8(1). Counsel for Vax, however, drew attention to what Neuberger LJ went on to say (emphasis added):

For his part, counsel for Vax relied on the decision of the Third Board of Appeal of OHIM in Case R 690/2007-3 Lindner Recyclingtech GmBH v Franssons Verkstader AB [2010] ECDR 1. In that case the Board, whose rapporteur was David Keeling, considered the interpretation of Article 8(1) of the Community Designs Regulation in a passage which merits quotation in full despite its length:

Counsel for Vax submitted that this was a c ompelling analysis, and in particular the point made by the Board at [30]. Counsel for Dyson had no convincing answer to that point. It does not appear to be a point which was made to the Court of Appeal in Landor & Hawa. In my view the Board of A ppeal's analysis is persuasive. I therefore conclude that the interpretation placed on Article 8(1) of the Community Designs Regulation, and hence Article 7(1) of the

Article 9(2) of the Designs Directive provides that the degree of freedom of the designer is to be taken into account in assessing the scope of protection conferred by a registered design.

In Grupo Promer the General Court held:

Counsel f or Vax subm itted, a nd I ac cept, t hat t his p assage indicates tha t d esign freedom may be constrained by (i) the technical function of the product or an element thereof, (ii) t he n eed t o incorporate fe atures common to s uch pr oducts an d/or (i ii) ec onomic considerations (e. g. the need for the item to be inexpensive).

In Shenzhen the General Court held:

Counsel for Dyson submitted, and I accept, that this passage demonstrated that the designer's degree of freedom could be tested by reference to the existing design corpus. As Jacob LJ put it in Procter & Gamble Co v Reckitt Benckiser (UK) Ltd [2007] EWCA Civ 936, [2008] FSR 8 at [57]:

Counsel for Dyson also submitted, and I accept, that evidence of design freedom could also come from designs produced after the date of the registered design. If a w ide variety of designs w as produced aft er the reg istered d esign, t hat is e vidence tha t t he de signer of the registered design had not been constrained to design the product in the way that he had.

Article 9(2) of the Designs Directive indicates that, other things being equal, a registered design should receive a broader scope of protection where the designer had a greater degree of freedom and a narrower scope of protection where the designer had a lesser degree of freedom. Thus in Grupo Promer the General Court held:

Recital (13) of t he Designs Directive indicates that, other things being equal, a registered design should receive a broader scope of protection where the registered design is markedly different to the design corpus and a narrower scope of protection where it differs only slightly from the design corpus. Thus in Grupo Promer the General Court held at [72]:

Counsel for Vax accepted that in general the proposition stated by Jacob LJ w ould normally be correct, but submitted that it would not be correct where the striking elements of the design w ere ones w here t here w as l ittle des ign free dom, in part icular be cause of te chnical requirements. More specifically, he argued that, if the registered design was based on a new technology bringing with it new design constraints, then differences between the registered design and an existing design corpus based on old technology might have little relevance when it came to comparing the registered design with a subsequent design based on the new technology. In principle I accept this point.

The p arties we re divided as t o th e co rrect date a s at the ov erall imp ression of the allegedly infringing design should be compared with the overall impression of th e registered design.

Counsel for Vax contended that the comparison should be made as at the date of the alleged infringement. He subm itted that this fo llowed fro m the fact th at Article 9(1) of th e Designs Directive was expressed in the present tense and from the fact that design freedom could change over time. He accepted that this meant that the scope of protection of the registered design could change over time and could either diminish or increase, but argued that there was no reason why should this not be the case. He also submitted that, if Article 9(1) were interpreted as requiring the comparison to be made as at the date of registration of the registered design, then there would be a conflict with Article 5(1).

Counsel for Dyson contended that the comparison should be made as at th e date of registration of the registered design for four reasons. First, he submitted that it was immaterial that Article 9(1) was expressed in the present tense, since Article 9(2) must be referring to the degree of freedom of the designer of the registered design which pointed to a comparison as at that date. Secondly, he pointed out that recital (13) referred to the existing design corpus, which must be the design corpus which existed at the date of registration, and that recital (13) had been treated in the authorities as relevant to infringement as well as validity. Thirdly, he submitted that otherwise the scope of protection could be eroded by subsequent designs which adopted the striking features of the registered design one by one. Fourthly, he submitted that the comparison with Article 5(1) supported this conclusion, since if the scope of the monopoly could get broader

In my judgment the reasons given by counsel for Dyson for making the comparison as at the date of the registered design, and having regard to the existing design corpus as at that date, are convincing.

It is com mon grou nd th at, alt hough i t i s prop er to consider b oth similarities and differences between the respective machines, what matters is the overall impression produced on the informed user by each design having regard to the design corpus and the degree of freedom of the designer. In this regard both counsel referred me to the observations of Mann J in Rolawn Ltd v Turfmech Ltd Machinery Ltd [2008] EWHC 989 (Pat), [2008] RPC 27:

During the course of argument there was some debate as to whether questions should be referred to the ECJ as to the interpretation of the the Designs Directive. Although I consider that some of t he issues considered above involve points of interpretation of the Designs Directive which are not acte clair and which are likely to require resolution by the ECJ at some point, I have come to the conclusion that a reference is not necessary for the resolution of the present case because those issues are unlikely to be determinative.

Dyson called three factual witnesses. Andrew Thomson was the principal designer of the DC02. James Turner was Dyson's Graphics Manager at the time of the launch of the DC02,

Applying the principles discussed above to the facts of the present case, my assessment is as follows.

There is no dispute that the informed user in the present case is a knowledgeable user of domestic vacuum cleaners.

Counsel for Vax submitted that the effect of the statement of novelty in the Registered Design was to exclude anything other than the "shape" and "configuration" of the article from the scope of the monopoly, and hence to exclude other aspects of the design of the article shown in the representations, including the fact that the dust collection bin is transparent. He nevertheless argued that the design corpus was to be assessed on the basis that the article shown in the representations was a cyclonic vacuum cleaner, and accepted that the only way in which the informed user could know that it was a cyclonic vacuum cleaner was because the user could see the shroud of the outer cyclone within the bin in the representations as a result of the bin being transparent. He sought to escape from the apparent paradox to which these submissions lead, that one must disregard the transparency of the bin and yet one can only see what is within the bin because it is transparent, by arguing that the court should not notionally treat the bin as opaque, but rath er sh ould i gnore t he tr ansparency of the bin when assessing the overal l impression produced by the Registered Design and comparing it to the overall impression produced by the Mach Zen.

Counsel for Dyson accepted that the fact that the bin was transparent was not in itself a feature of shape or configuration, but disputed that the statement of novelty required the court to ignore the transparency of the bin. He submitted that the transparency of the bin nevertheless affected the shape or configuration of the article depicted in the representations. Furthermore, he agreed with counsel for Vax that the informed user would know that the vacuum cleaner was cyclonic and that the only way in which the user could know this was because the user would see the cyclone within the bin. He disputed that the transparency of the bin should be ignored when assessing the overall impression produced by the Registered Design.

I have not found this issue easy to resolve. Speaking for myself, I find it difficult to see how the scope of protection of the Registered Design under the Designs Directive can be affected by an artefa ct of the pr e-implementation d omestic la w. Co unsel f or D yson did no t ar gue, however, that the statement of novelty should simply be disregarded. I must therefore proceed on the basis that it is to be taken into account.

That being so, I ha ve come to the conclusion that the solution to the conundrum is provided by the comment of the editor of Russell-Clarke and Howe quoted above. If one leaves the statement of novelty on one side, the transparency of the bin is plainly a feature of the design depicted in the representations which contribut es to its eye appea l. I do not consider that the statement of novelty requires this feature to be ignored even if transparency is "pattern" or "ornament" rather than "shape" or "configuration". (The m eans by whic h the transparency is achieved - such as the use of a transparent plastic - is clearly none of these, but in my view that is a separate point. ) The fact that it is common ground that the informed user would know that the article depicted in the representations was a cyclonic vacuum cleaner because the informed user would see the cyclone within the bin supports this conclusion.

The parties were sharply divided as to the relevant existing design corpus in this case. Dyson contends that it consists of cylinder vacuum cleaners. This is narrower than the indication in the registration and takes into account the nature of the product shown in the representations. By contrast, Vax contends that there was no existing design corpus at all in December 1994. This is on the basis that the relevant product category is cyclonic cylinder vacuum cleaners, and the first product to be marketed in that category was the DC02. Indeed, at times counsel for Vax appeared to be contending that the relevant product category was two-stage cyclonic cylinder vacuum cleaners.

I have to say that, from a forensic perspective, I find Vax's contention a surprising one, since it would apparently lead to the Registered Design having a broader scope of protection than if the design corpus were as Dyson contends. Be that as it may, I consider that Dyson is correct on this point. Although it is common ground that the informed user w ould appreciate the article depicted in the representations was a cyclonic cylinder vacuum cleaner, I consider that the informed user would re gard it as sim ply a cy linder vacuum cleaner with a partic ular dust separation te chnology. O n the e vidence, there is n ot a reco gnised separate su b-category of cyclonic cylinder cleaners even now. Instead, the distinction that is commonly made is between bagged and bagless cylinder cleaners.

The evidence demonstrates that in 1994 there were two main types of cylinder vacuum cleaner, described by Mr Gammack as "sledge" layout machines and "tank vacs". The former were shaped like a lozenge or bar of soap. The latter were barrell- shaped machines. The "sledge" layout machines were quite similar to each other in terms of their overall appearance. Differences between the registered design and the existing design corpus

Dyson con tends tha t th e R egistered D esign is striki ngly differen t both i n ov erall appearance and in numerous detailed aspects of t he design to the existing design corpus of cylinder vacuum clea ners in D ecember 19 94. In my ju dgment t he e vidence supports that contention.

Vax contends that the transparent bin, even if not excluded by the statement of novelty, is a feature dictated solely by function within Article 7(1) of the Designs Directive. The function in question is that of enabling the user to see when the bin is full of dirt and hence needs emptying. I do not accept this. Applying the test set out in Lindner at [36], I am not satisfied that

Dyson contends that the evidence shows that the designer of a cylinder vacuum cleaner has a great deal of design freedom. Dyson says this remains so if one restricts one's attention to bagless cyclinder cleaners, and even if one restricts one's attention to cyclonic cylinder cleaners. In support of these contentions Dyson points to a series of cylinder vacuum cleaners that have been marketed since December 1994 that vary widely in their appearance from the Registered Design. In general, I accept that the evidence shows that a considerable variety of designs has been marketed.

That is not the end of this aspect of the matter, however, because Vax contends that the marketing of a variety of designs does not disprove the existence of relevant design constraints. Counsel for Vax submitted that the exercise undertaken by Dyson of collecting cylinder cleaners of different appearance was of little probative value for two main reasons. The first was that the degree of design freedom depended on the technical specification of each cleaner, particularly in terms of its dust separation technology, size, weight, electrical power consumption and suction power. As counsel for Vax put it, the freedom of the designer referred to in Article 9(2) is not the freedom to de velop a technically inferior product. The second was that the degree of des ign freedom depended on other intellectual property rights, and in particular patents, owned not only by the parties but also third parties.

I accept that, in general, the degree of freedom of the desi gner must be j udged by

I do not accept that the existence of other intellectual property rights is a relevant consideration, or at least not unless it is specifically proved that particular rights existed which imposed particular constraints on the freedom of the designer at the relevant time. In the present case Vax did not prove that any particular rights existed which imposed particular constraints at any relevant date.

Although stressing that overall impression is what matters, Dyson has identified nine respects in which it contends that the Mach Zen is similar to the Registered Design while the Registered Design differs from the existing design corpus. I shall consider these in turn.

A bin inclined at substantially halfway between vertical and horizontal. It was common ground between the witnesses that it is possible to orient a multi-cyclone separator at any angle from vertical to horizontal. There was also a considerable measure of agreement, however, that there are some technical considerations that favour a vertical orientation and others that favour a horizontal orientation, and that the trade-off between them favours an angle of around 45°. To

Counsel for Vax accepted that, at this level of generality, the Mach Zen was similar to the Re gistered D esign w hile t his feat ure w as n ot present in t he existing design corpus. H e submitted, however, that, given the restricted degree of freedom of the designer of the Mach Zen, the similarity in itself was not of great significance. I accept this submission.

Furthermore, he s ubmitted that in any event the informed user wo uld consider the design of the bin as a whole and notice a number of differences between the Mach Zen and the Registered Design in this respect. I agree with this. The principal differences are as follows:

The bin is transparent, and through it the cyclone shroud is visible. For the reasons given above I do not accept Vax's arguments that the transparent bin is not a feature of the Registered Design or that it is excluded under Article 7(1) of the Designs Directive.

In the further alternative Vax contends that the designer's freedom was constrained by the need for t he user to se e when t he bin is full. S o far as this is concerned, it is common ground that there are other possible solutions. One could have a window, one could have a tinted bin and one could have some kind of a detector with an indicator light or sounder. On the evidence, however, each of these a lternatives had drawbacks. A window is unsa tisfactory because dirt may not accumulate evenly in the bin, a tinted bin is unsatisfactory because it is less easy to see the dirt and a detector plus indicator involves added expense and complexity. It follows that ease of use and cost considerations both point to adoption of a transparent bin. Again, therefore, the degree of freedom of the designer of the Mach Zen was rest ricted if he wanted to achieve the best solution.

Counsel for Vax accepted that the Mach Zen was similar to the Registered Design in having a transparent bin while this feature was not present in the existing design corpus. He

As for the shape and appearance of the cyclone visible through the bin, this is completely different between the two designs.

A co-axial pair of wheels at the rear of the machine, oversized such that they extend to approximately half the height of the body of the machine. It is common ground that it is not necessary for a cylinder vacuum cleaner, or even a cyclonic cylinder cleaner, to have large rear wheels. V ax nevertheless contends t hat the designer's degre e of f reedom is constrai ned by technical considerations. The e vidence is that there is an advantage to having a p air of large wheels since this makes it e asier to drag the machine over obs tacles. Furthermore, there is a n advantage to locating these wheels close to the motor which is the heaviest part of the machine, and in both the DC02 and the Mach Zen this is at the rear of the machine.

Once again, counsel for Vax accepted that the Mach Zen was similar to the Registered Design in having this feature while it was not present in the existing design corpus, but submitted that, given the restricted degree of freedom of the desi gner of the Mach Zen, this similarity in itself was not of great significance. Once again, I accept this submission.

Furthermore, as counsel for Vax submitted, the informed user would notice considerable differences between the respective rear wheel designs:

The wheels are spaced apart to define the widest part of the machine. Vax contends there is little design freedom in this respect since the wheels need to be located at the outer part of the machine to give it stability. Dyson ripostes that the wheels do not have to be set so far apart. I conclude that it is advantageous for stability reasons for the wheels to be spaced apart and to that extent the designer's freedom was restricted. Furthermore, the effect of the first of the differences identified in paragraph 74 above is that in the Mach Zen the wheels appear to be spaced further apart than in the Registered Design.

Prominent wheel arches extending over the top of the wheels, part of each of which is formed by an elongated operational button. It is convenient to deal with the wheel arches and buttons or pedals separately.

So far as the presence of wheel arches is concerned, Vax contends that the designer's freedom is constrained by the need to prevent debris from dropping into the wheel mechanism. I accept this. Furthermore, the wheel arches are bound to have some prominence given the size of the rear wheels. Apart from that, however, the respective arches are quite different. In the Registered Design, as note d above, t he wheel arch extends almost flush over the wheel. In addition it is designed to align with the front and rear housings so that three parts together form a smooth curve around the wheel. At the leading end this curve is high up the wheel while at the trailing end it is low. By contrast, in the Mach Zen the wheel arch is separate from the main housing and shaped more like a bicycle mud guard. It extends from low down at the leading end to just beyond the top of the wheel.

As for the b uttons or pe dals, V ax contends that t here are a n umber of des ign constraints. One needs to have an on-off switch and a cable rewind activator. It is desirable, although not necessary, to have the former close to the motor and the latter close to the cable rewind. It is a lso desirable, although not necessary, to place them over the r ear wheels for stability reasons. Furthermore, it was common in the design corpus for buttons or pedals to be provided at the rear of the machine for these purposes. I accept all of this. Furthermore, the designs of the respective buttons or pedals are quite different. In the Registered Design they are formed as part of the smooth curve of the wheel arches. By contrast in the Mach Zen they are separate from and sit on top of the wheel arches, they bear ten prominent parallel ridges, they extend in an L shape around the back of the machine and the rear portions bear raised, moulded switch and cable symbols.

A cyclone top which increases in height towards the rear of the machine. Vax contends, and I accept, that the designer's freedom is constrained in that the shape of the cyclone top follows the air pat h between the cyclone and the motor. Of course this does not dictate the precise shape of the cyclone top, but the shapes of the respective cyclone tops are different in a number of respects.

A lower bin support formed from a sweeping and curved forward extension of the wheel arches. Vax contends that there is little or n o similarity in this respect. I a gree. One can certainly s ee this feat ure in t he Re gistered Design, a nd it is one of t he fe atures w hich distinguishes the Registered Design from the existing design corpus. But there is really nothing like it in the Mach Zen. It should be noted in this respect that, unlike the Registered Design, the Mach Zen is asymmetric along its longitudinal axis. Viewed from the one side there is a prominent run of hose along the bottom of the bin whereas there is no such feature viewed from the ot her si de. Thi s m eans t hat on e si de vi ew of th e M ach Zen i s more d ifferent to th e Registered Design than the other side view. Even if one focuses on the latter, however, I see little similarity in this respect.

A long arcuate handle sweeping from above the bin to the rear of the machine above and behind the wheel which overarches the cyclone top. It is common ground that the handle does not have to be longitudinal or central to the machine. Vax contends, however, that the designer's freedom is restricted in that it is advantageous in terms of ease of carrying to have a handle which is longitudinal and central. I accept this.

On the other hand, there do not appear to be any design constraints which militate in favour of the choice of an arcuate handle. In this respect there is a similarity between the Mach Zen and the Registered Design which is not present in existing design corpus and in respect of which there is design freedom.

Nevertheless there are a number of differences between the handle designs which the informed user would notice:

A body portion which slopes downwards from the cyclone top towards the rear of the machine. This area houses the air ducts from the motor to the cyclone. Vax contends that, since these ducts pass from a high position (above the cyclone) to a low position (the motor), it is technically sensible for the housing to follow the same line. Of course, one could build up the housing, but this would take up unnecessary space and material. I accept this. Furthermore the details of the respective designs are different.

Vax contends that, in addition to the differences identified above, there are a number of other differences between the Mach Zen and the Registered Design which would have an impact on the perception of the informed user. I agree with this. These differences include the following.

The rear of the machine. The rear of the Registered Design is a smooth curved cover, following the curve of the top of the housing and extending beyond the wheels. The recess for the plug is tucked away right at the bottom underneath the cover. The rear of the Mach Zen is quite different. There is no curved cover. It comprises a vertical wall, with seven parallel plastic ribs and a ventilation grille. The plane of the wall is inside the rear of the wheels. The plug recess is prominent in the middle of the wall.

Hose connector position. In the Registered Design the hose connector is positioned at the top of the machine. This is a prominent feature which serves to emphasize the height of the machine, and enables the front of the machine to be finished off with a smooth, curved bumper. It also involves a swivel joint which is another prominent feature. The Mach Z en has the hose connector right at the front of the machine, emphasizing its length, not its height. There is no

Front wheels. The Registered Design has a pair of castor wheels at either side. The Mach Zen only has only one in the middle, of different appearance.

Cut-away feature. The base of the Registered Design has a right-angled cut-away. This enables the cleaner to sit on a stair and is a striking feature of the Registered Design. There is no such feature in the Mach Zen, the base of which is close to the ground.

Footplate feature. The Mach Zen has a prominent "footplate" jutting out from the main body of the machine and running parallel to the ground on both sides. There is no such feature in the Registered Design.

Wand handle. The w and h andle is t he s ubject of a separa te repres entation on t he Registered Design. It is therefore an aspect of the Registered Design of some significance. The wand handle is roughly banana-shaped with a trigger by a grooved area. The base of the wand handle swells to a joint with a hose collar fastened with a clip. The Mach Zen wand is quite different from the Dyson wand. It is m ade up of three intersecting sections, creating a storage area for tools so t hat they are made easily available to the user. This results in a triangular configuration. There is no trigger, grooved section, clip or hose collar. In addition, the Mach Zen wand handle has a rather longer nozzle.

Standing back from the details and considering the overall impressions of the respective designs from the perspective of the informed user in the light of the existing design corpus and the degree of freedom of the designer, my conclusions are as follows.

In my view the informed user would notice that there were certain similarities between the two designs, in particular the inclined transparent bin, the large rear wheels and the curved longitudinal central handle. For the reasons given above, the informed user would not consider these similarities to be par ticularly significant. T he informer user woul d als o notice m any differences between the respective designs, including features present in the Registered Design which are not present in the Mach Zen and vice versa. For the reas ons explained above, the informed user would consider a number of these differences to be significant, particularly the rear view, the hose connector position, the bin handle, the wand handle, the cut-away feature and bumper of the Registered Design and the asymmetry of the Mach Zen. The overall impression produced by the Registered Design is sm ooth, curving and elegant. The overall impression produced by th e Ma ch Ze n is rug ged, angular a nd in dustrial, even somewhat brutal.

Even on t he basis that the Registered Design is e ntitled to a fa irly broad scope of protection because of the differences between the Registered Design and the existing design corpus and because of the degree of freedom of th e designer, in my judgment the overall impressions produced by the two designs are different.

The claim is dismissed.