Industrial Designs
Safepak Limited v Malplast Industries Limited [2007] KEHC 1452 (KLR) (30 November 2007) (Ruling)
Facts
Safepak's registered ornamental bottle Design No. 385 depicted a smiling clown face with star-shaped eye pupils, a frill collar, and straight body lines. In May 2007 Malplast began selling near-identical bottles with only minor cosmetic changes: rounded pupils, a two-arm device instead of a frill, and wavy lines.
Issues
Whether Malplast's bottle infringed Design No. 385, and whether an interlocutory injunction should issue.
Rule
Industrial Property Act ss.92(1) and 92(3); the Giella v Cassman Brown injunction test.
Analysis
The Court held the differences between the two bottles were imperceptible without close inspection and did not defeat the substantial similarity to the registered design; statutory IP protection made damages an inadequate remedy.
Conclusion
Injunction granted restraining Malplast from manufacturing, importing, exporting or selling the infringing bottles and from dealing with related moulds, conditional on Safepak's cross-undertaking in damages.
Ruling available at kenyalaw.org. (Note: this is a distinct dispute over Design No. 385, a "clown face" bottle, separate from Malplast's later 2012 KIPI "juice bottle" opposition, KE/D/2009/00940, already in this database.)