Azure gets the blues as appeal court throws out case

In Landor and Hawa International Ltd v Azure Designs Ltd, Lords Justice May, Neuberger and Wilson of the Court of Appeal for England and Wales have dismissed an appeal over design rights

From 1985 Landor and Hawa International Ltd (LHI) designed, made and sold travel suitcases and bags. In June 2002 its managing director designed an expander section for a rigid, so-called 'shell', suitcase; cases with that design were successfully marketed and sold by LHI with its consent, both in the United Kingdom and abroad, from June 2002. In the summer of 2003 LHI discovered that Azure had imported and was selling in the United Kingdom expander suitcases made in China under the brand name 'Label' and which, LHI alleged, infringed its design rights. Seeking damages and an injunction, LHI sued Azure for infringement of both registered and unregistered design rights.

The trial judge held for LHI, taking the view that Section 213(3)(a) of the Copyright, Designs and Patents Act 1988 ("Design right does not subsist in […] a method or principle of construction") should be narrowly construed and did not apply unless the purpose of the expander section could not be achieved by any other means. Azure appealed to the Court of Appeal, which considered three issues:

• Did LHI enjoy unregistered right protection in the expander design?
  
  
• Were the design rights being claimed in "features of appearance of a product which were solely dictated by its technical function"?
  
  
• Was the trial judge correct to grant a quia timet injunction restraining Azure from marketing and selling products that infringed the design rights, despite the fact that any threat to do so had been withdrawn by Azure by the time LHI issued proceedings?

The Court of Appeal dismissed the appeal, taking the view that the trial judge was right on all points for all the right reasons.

Jeremy Phillips, IP consultant to Slaughter and May, London