POF Case Review - Review 2 Pty Ltd v Redberry Enterprise Pty Ltd [2008] FCA 1588

Magda Khalil of Phillips Ormonde Fitzpatrick reports on Review 2 Pty Ltd v Redberry Enterprise Pty Ltd [2008] FCA 1588 in which Review 2 Pty Ltd was registered as the owner of Design Registration No. 307708 in relation to ladies garments (the Review Design) and whether Redberry Enterprise Pty Ltd (Redberry) infringed the Review Design and considered Redberry’s cross-claim that the Review Design was invalid.

According to Magda Khalil, Kenny J decided that the informed user would conclude that the design embodied in the Redberry dress created a different overall impression to the Review Design principally because of the difference in the shape of the skirts, combined with the differences in pattern, including colour. Accordingly, it was held that there was no substantial similarity in overall impression and therefore no infringement.

In relation to validity, Magda Khalil reports that Kenny J found that differences in the Review Design, including the shape of the skirt, and differences in pattern would lead an informed user to conclude that the design was different in overall impression, concluding that the Review Design was valid, but that the monopoly conferred by registration was closely confined. This case reminds us that while a design registration may be found valid, the monopoly conferred by registration can be closely confined by what has been disclosed in the prior art.

Case Review - Review 2 Pty Ltd v Redberry Enterprise Pty Ltd [2008] FCA 1588