Virgin crashes out in unregistered design case

United Kingdom
In Virgin Atlantic Airways Ltd v Premium Aircraft Interiors Group Ltd ([2009] EWHC 26 (Pat), January 21 2009), the Chancery Division of the High Court of England and Wales has dismissed an action for infringement of an unregistered design on the grounds that the defendant had independently developed its own design.
This case involved alleged infringements of unregistered design rights subsisting in Virgin Atlantic Airways Ltd's flat-bed seat, which is known as the 'Upper Class Suite' or 'UCS'.

Previously, seats turned into beds by reclining the seat. However, the UCS had a 'flip-over' design: a mattress was provided on the rear of the seat, such that the seat was flipped over when converted into bed mode. The UCSs were aligned in an inward facing herringbone arrangement, where each seat faced towards the aisle at a slight angle to the longitudinal axis of the plane. Until the introduction of the UCS, the perception in the industry was that passengers would not like an inward facing herringbone.
The UCS was manufactured for Virgin by Premium Aircraft Interiors Group Ltd (known as 'Contour'). Contour, together with its external designer Acumen, designed the 'Rock' seat for Cathay Pacific, which was later used as a basis for the 'Solar Eclipse' seat for Air Canada. Virgin alleged that Contour had infringed its unregistered design rights in parts of the UCS. Contour denied the allegations.
The thrust of Virgin's case was that due to pressure of time, Acumen had copied a layout of passenger area (LOPA) provided by Cathay which featured a representation of the UCS in an inward facing herringbone into a LOPA that Acumen sent to Cathay on May 13 2004. Virgin argued that Acumen had then copied this LOPA into another LOPA sent the following day. According to Virgin, this second LOPA became the foundation for the subsequent seat. Hence, the seat had been indirectly copied from the UCS.
In evidence, Acumen produced overlays of the various LOPAs which illustrated the similarities and differences between: 
  • the Cathay LOPA and a genuine Virgin LOPA;
  • the LOPA of May 13 2004 and the Cathay LOPA; and
  • the LOPA of May 13 2004 and the second LOPA.
The court stated that in considering the issue of copying, the function of the experts was not to evaluate the factual evidence, but to point out to the court the similarities and differences between the design and the alleged infringement, as well as the significance of those similarities and differences. Unfortunately, Virgin's design expert understood his function to be to identify the similarities between the UCS and the Solar Eclipse seat, and to disregard any differences.
The court decided that Cathay's instructions were that it wanted a Virgin-style herringbone concept, but not that it wanted a copy of the UCS. At most, what Acumen took from that was the concept of the inward facing herringbone. Acumen did not have access to a genuine Virgin LOPA and the LOPA produced by Cathay was too crude and inaccurate to form a basis for copying. Within the constraints of aircraft seating design, the significant differences between the Cathay LOPA and the LOPA of May 13 2004, and the further differences between that LOPA and the second LOPA, did not lead to the inference that any one of the LOPAs was copied from the other.
Consequently, the court concluded that Virgin had failed to prove that Contour had copied its designs. The claim for infringement of an unregistered design right thus failed. Although numerous references to the UCS were made during the various design stages of the Solar Eclipse seat, the court made it clear that:

  • these references did not prove copying; and
  • it was understandable that a competitor would analyze the UCS when trying the create a better product.
Virgin has announced that it will be appealing the judgment.

Anna Bartholomew, McDermott Will & Emery UK LLP, London

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