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no primary design right infringement for importing articles manufactured abroad

7 June 2013

The Patents County Court has dismissed a claim that importing plastic microwave containers manufactured in China into the UK amounted to primary design right infringement (under s226 CDPA 1988), which prevents copying – exactly or substantially – of an unregistered design in the UK). The claim was inconsistent with the CDPA 1988 and the principle of territoriality of IP rights.

It was irrelevant that the manufacture overseas was with the “sole intention” of importing articles into the UK; primary infringement of design rights is not generally dependent on the “motive” of the perpetrator once sufficient copying is established.

It is unclear why the claimant failed to rely on section 227 CDPA 1988 (secondary infringement) in its claim, as this prevents importation without permission and for commercial purposes of an article which the importer knows, or has reason to believe, is an infringing article. Design right holders should ensure they carefully consider the basis of their claim at the outset when seeking to pursue an alleged infringer.

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