An Open and Shut Case? The Supreme Court and the Complications of Copyright

6th November 2015 Commercial

The logistics involved in heading off on holiday to far-flung, sun-kissed destinations is something which we'd generally consider only of interest to families and travel companies carrying them. However, whilst the amount of bags that we pack is a matter for us and the airline Excess Luggage surcharge, the type of bags that we take has become an issue of concern for entrepreneurs and the courts.

This week, the British manufacturer of a distinctive brand of children's suitcases has been in the Supreme Court, fighting on a key point of copyright law.

Even though many people are arguably unfamiliar with the Bristol-based firm Magmatic, many more who have passed through departure lounges at home and abroad will recognise its Trunki wheeled cases, which allow to children to sit on-board and 'ride'.

Over the last two years, Magmatic has been involved in litigation with PMS, a Hong Kong company which sells the Kiddee case, a similar product.

In 2013, Magmatic won a High Court ruling by maintaining that the rival design infringed its design rights, although that decision was overturned in the Court of Appeal last year.

After listening to submissions by both sides, five Supreme Court judges will deliberate before delivering their verdicts in the coming months.

To the dispassionate observer, it might seem to be a fairly routine piece of commercial litigation. I reckon, though, that it's anything but that and could have very important - and costly - implications for British entrepreneurs, e-commerce and the country's economy.

Leaving aside the individual points of detail advanced by the two sides in this case, it is worth pointing out that a considerable proportion of the matters dealt with by myself and my colleagues in JMW's Commercial Litigation department involve allegations of copyright infringement.

Often, they feature designs similar enough to cause the kind of confusion amongst consumers as to lead to lost business and, such is the cross-border nature of online retail nowadays, that some cases involve taking issue with rivals in other jurisdictions. The problem is not just that being a winning marque attracts the attention of consumers, media and competitors.

To some firms, the cost of putting brand protections, such as trademarks, in place appears so large when they're starting out, that they put it off until their sales justify the outlay.

They might not have cause to revisit the subject until it's too late, when they have a possible infringement to contest. Incorporating such matters into a business plan can even seem such a hassle that there are those entrepreneurs who consider diverting their creative energies elsewhere.

They simply want to build a business without the threat of poaching and the administration involved in establishing legal protections and remaining vigilant thereafter. Such an approach and management of start-up funding is, in my opinion, a false economy.

These kind of lawsuits give a lie to the saying that "imitation is the sincerest form of flattery". In fact, they can be a massive headache to businessmen and women.

Despite that, they should not deter the ambitious from following their commercial vision. With the right protections to hand, even small brands can navigate their way to success on the choppy waters of online retail and repel pirates who take a shine to reputations, riches and designs.

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Marc Yaffe is a Head of Business Development located in Manchesterin our Management BoardSports Law departments

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