Appointed Person design appeal: Erol v Javaid
The first ever registered designs Appointed Person decision has been handed down. This was made possible by the Intellectual Property Act 2014 which allows for appeals to the Appointed Person in UK design cases.
The case involved designs owned by Erol for clothing bearing a stylised Union Jack. Javaid had sought to invalidate the designs arguing that they lacked novelty or individual character.
The Appointed Person, Martin Howe QC, agreed that the designs lacked individual character compared to available prior art and as such were invalid. In doing so he refused to allow Erol to submit further evidence and the appeal was dismissed.
Appeals to the Appointed Person have long been a lower cost alternative to appeals to the High Court in trade mark cases.
This decision makes it clear that the Appointed Person could be used more frequently in design proceedings.
Howe said in his decision:
Unless there is a relevant difference between substantive designs law and trade mark law which justifies a different approach, or some other specific and concrete reason, the Appointed Persons for designs appeals will follow and apply the established practice and procedural decisions of the Appointed Persons in trade mark appeals.
Appeals to the Appointed Person cannot be appealed further and decisions are final; however, whilst the number of Appointed Person design appeals will likely be far outweighed by trade mark cases, it is now a viable option worth considering in UK registered design proceedings.
Full decision, O-253-17, 18 May 2017: http://dycip.com/O-253-17