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MR ONSLOW (instructed by Baxter Caulfield) appeared on behalf of the Defendant.
Crown Copyright ©
"105. I am not sure that these differences of opinion have any significance. For it is difficult to think of an example where it matters. It is important here to focus on exactly the context in which the question "commonplace or not" arises. That context is this: a particular aspect of the shape or configuration of an article or part of an article has been identified and has been found "original" in the copyright sense.
One then asks whether that aspect is "commonplace." Clearly there will be cases where the answer is "yes" – for instance every aspect of the washers whose design drawings were held "original" in British Northrop. To that extent at least the criticism of Farmers Build in Laddie et al. para. 53.25, namely it can be read as "giving the commonplace exclusion a vanishingly small scope" must be an error. If all you have done is a design of a common object, you have merely made your own design of that which is commonplace.
106. But consider the case where the designer started with something old, very well-known but unique to a particular manufacturer. Laddie et al. postulate the Eiffel tower. Perhaps a Coca-Cola bottle would be a better example for, unlike the tower, it is ubiquitous. If a man just copies it, his work will not be "original". So there is no need for the commonplace exception there. If he copies it but makes visual variants which can properly be called "aspects of part of his design" then those variants will get UDR unless they themselves are either not original or are commonplace. But that is unlikely. The example shows that what one is focussing on is the ultimate "design": whether the designer started with some well-known prior art or not. Only if the designer makes an "original" (because not copied) design of a bottle which happens to be the same as that of the Coca-Cola bottle does the problem arise of whether that design is to be regarded as commonplace. But that is improbable."
He says that what those paragraphs emphasise is that the fact that the designer produced an original design does not mean that the design is necessarily not commonplace. The allegation that Mr Onslow makes is that the result of the work done by Mr Edwards, although original in the sense of not copied from a previous conventional tulip-shaped beer glass, has produced a design which is the same as designs already well known on the market. In particular, he relies on four: the Cobra design, the Carlsberg design, the Peroni design and the Amstel design. (It is fair to say that probably the closest, I think, is the Peroni, but I will take all four.) He says that that is what was contemplated in the judgment of Jacob LJ at paragraph 106, particularly the last part of paragraph 106.
"(5) If, however, there are aspects of the plaintiff's design of the article which are not to be found in any other design in the field in question, and those aspects are found in the defendant's design, the court would be entitled to conclude that the design in question was not "commonplace" and that there was good reason for treating it as protected from misappropriation during the limited period laid down in the 1988 Act. That would be so, even though the design in question would not begin to satisfy any requirement of novelty in the registered designs legislation."