The SC agreed with the CoA that the overall impression created by the RCD was that of a horned animal. Having said that, the Supreme Court did say obiterthat absence of surface decoration could be a feature of a CRD.

In particular, it is expected to provide clarification on whether the colour contrasts shown in the CRD’s computer-aided drawings do in fact operate to limit the design to a particular style of surface decoration.In the Trunki case itself, the court has played down the relevance of the Court of Appeal's consideration of surface decoration. Kiddee cases are made by the Hong Kong-based PMS International and, like Trunki cases, are decorated to look like animals. However, Lord Neuberger's remarks suggest that such inattention to the visible features of a design representation is akin to filing a patent application without paying careful attention to each feature of the claims, or without recognising that claim integers really do limit one's protection. The Court of Appeal seemed to describe the different overall impressions by reference to the applicable decoration on the Kiddee Cases. Although a design registered in black and white or in greyscale is not limited to any particular colour, the Trunki case reminds designers of the need to be very cautious when using greyscale to ensure that features that are not intended to be different colours are not represented in contrasting shades.

If, as in the case of the CRD, an applicant for a Community Registered Design elects to submit CADs of an item, whose main body appears as a uniform grey, but which has a black strip, a black strap and black wheels, the natural inference is that the components shown in black are intended to be in a contrasting colour to that of the main body. e. that the CRD covers shape only, and should only be compared with the shape (and not surface decoration) of the Kiddee Case. The Claimant sued the Defendant for registered design infringement of its CRD and for copyright infringement in respect of the artwork for its packaging. Magmatic's appeal was therefore dismissed and the CoA's decision that there was no infringement was upheld.e. "skilled in the art"), by which he informs them what he claims to be the essential features of the new product or process for which the letters patent grant him a monopoly. As Dr Martin Schlötelburg, the co-ordinator of OHIM’s Designs Department, has written, “the selection of the means for representing a design is equivalent to the drafting of the claims in a patent: including features means claiming them”.

The CoA took the view that the fact that the RCD was unadourned reinforced the overall impression it created (i. Arnold J, though he did mention the horns, did not appear to give sufficient weight to the overall impression of a horned animal. The Supreme Court is certainly correct to say that if the overall impression is that of a horned animal then one must assess alleged infringements to evaluate if they too make the same impression. Whilst the registered design system can seem quite straightforward, the Trunki decision shows that interpreting registered designs and the protection they afford can be far from straightforward.He further held that "the mere fact that an issue involving Community Registered Design is not beyond argument does not mean that it has to be referred. The Supreme Court made a point of mentioning that multiple designs can be included in one application, and that this should be an effective way to produce a ‘cascade’ of protection. Whether it was in fact a feature of a given registered design turned on the proper interpretation of the representations used in the registration.

Has the Trunki case merely reinforced the perception that (registered) design right enforcement in the UK is predictably unpredictable? If you’re constrained by finances, you should consider what the most important aspect of your design is and try to make sure that that aspect is the focus of your registration, and not other features which might be present.As obiter, the SC agreed that absence of surface decoration could, as a matter of principle, be a feature of a registered design. However, the decision slightly glosses over the fact that it was the surface decoration of the Kiddee case (giving the impression of an insect with antennae in one embodiment, or a tiger with ears in another) that distanced the overall impression from being that of a horned creature.