Industrial Designs
Kenrub Limited v Metro-Poly Kenya Limited (IPT Case 98 of 2021) [2022] KEIPT 863 (KLR) (31 August 2022) (Judgment)
Facts
Kenrub owned registered Industrial Design No. 1090 (registered 12 October 2018) for a solid non-inflatable rubber wheel. In January 2021, Kenrub discovered Metro-Poly manufacturing and selling a similar wheel and sued for infringement; Metro-Poly claimed independent design by its own managing director.
Issues
Whether Metro-Poly's wheel infringed Design No. 1090, and what evidence suffices to prove design infringement.
Rule
Industrial Property Act 2001, ss.84, 86, 87, 92, 103, 106, 107, 108; Industrial Property Tribunal Rules 2002, Part IV, r.20; the visual-comparison test applied in Procter & Gamble Co v Reckitt Benckiser (UK) Ltd [2007] EWCA Civ 936.
Analysis
Infringement is assessed by visual comparison of the registered design as filed against the accused product. The Tribunal held Kenrub's evidence, a photocopied certificate and unclear pictorial representations, was inadequate to permit a proper comparison; a claimant bears the burden of producing clear images of the design as registered, not just of its own manufactured goods.
Conclusion
Claim dismissed with costs to Metro-Poly for failure to prove infringement.
Judgement available at kenyalaw.org.