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CACV 169/2010
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 169 OF 2010
(ON APPEAL FROM HCMP NO. 2696 OF 2009)
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IN THE MATTER of the Registered Designs Ordinance, Cap. 522, of the Laws of Hong Kong
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and
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IN THE MATTER of Registered Design Nos. 0800123.8, 0602147.9 and 0601018.5 being check pattern designs registered with the Designs Registry on 18 January 2008, 14 August 2006 and 21 April 2006 respectively in the name of Polo Santa Roberta Limited
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and
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IN THE MATTER of an application by Burberry Asia Limited to revoke the said Registered Designs and to remove them from the Register of Registered Designs
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BETWEEN
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BURBERRY ASIA LIMITED |
Plaintiff |
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and |
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POLO SANTA ROBERTA LIMITED |
Defendant |
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Before: Hon Rogers VP, Le Pichon JA and Lunn J in Court
Date of Hearing: 21 December 2010
Date of Judgment: 21 December 2010
Date of Handing Down Reasons for Judgment: 6 January 2011
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REASONS FOR JUDGMENT
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Hon Rogers VP:
1. This was an appeal from a judgment of Reyes J given on 21 July 2010. On that occasion the judge had made orders revoking the registration of the defendant’s registered designs numbers 0800123.8, 0602147.9 and 0601018.5.
2. In brief, the distinctive features of those registered designs were check designs, which are clearly confusingly similar to the check design which has been used by the plaintiff and its parent company for many years prior to the date of registration of the defendant’s designs. It is also clear that the defendant must have prior published its own designs not only by the sale of products made in accordance with them that but also by the registration of designs in the Peoples Republic of China.
3. At the commencement of the hearing of this appeal, this court indicated to the defendant’s counsel that in view of these matters, which were clearly undisputed on the evidence, the defendant’s position would appear untenable and that the defendant would be well advised to consider abandoning the appeal to save the consequences that may well follow the prosecution of an appeal which should never have been brought.
4. Following an adjournment, the defendant’s counsel indicated that the defendant did not wish to advance further argument. The appeal was accordingly dismissed with costs.
Hon Le Pichon JA:
5. I agree.
Hon Lunn J:
6. I agree.
(Anthony Rogers)
Vice-President |
(Doreen Le Pichon)
Justice of Appeal |
(Michael Lunn)
Judge of the Court of First Instance |
Mr Philips B F Wong, instructed by Messrs Simmons & Simmons, for the Plaintiff/Respondent
Mr Charles J Chan & Mr Gary T K Lam, instructed by Messrs Ivan Tang & Co., for the Defendant/Appellant
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