The Court of Appeal has dismissed an appeal which sought to overturn last year's IPEC ruling that M&S's registered designs had been infringed.

The appeal was brought on numerous grounds including that: the IPEC judge's interpretation of the registered designs was wrong; the judge was wrong to hold that disclosures by the designer during the grace period should be disregarded when assessing infringement; additional designs should have been included within the ‘design corpus’ and that this would have affected the assessment of infringement; and the judge had not properly compared the Aldi product to the designs. 

On the final point, the Court of Appeal concluded that the original decision was one that the judge had been “fully entitled” to reach. 

The decision is the second ‘copycat’ case involving Aldi in as many months, following their successful defence of a trade mark and passing off claim brought by Thatchers against their Taurus cider brand. 

This latest ruling undermines the important role good design registrations can make in protecting key brands & get-up from copycats. It's something all businesses should be considering as part of their brand protection strategy.  Whilst design cases of course turn on the facts, it shows their usefulness in staving off the threat from ‘copycats’, particularly where registered trade marks and passing off rights have proven of more limited use in that context.