Similarity of design (Infringement case)
(Conclusion) Defendant’s design is not Similar to the registered design. (Design right owner lost.)
The resistered design has a considerably lower top of the fitted portion as compared with the position of the upper side portions of the left and right tooth plate portions, when mounted on the bucket, closes the gap between the bucket as much as possible, it has a shape capable of preventing earth and sand leakage during operation.
On the other hand, the design of Defendant’s Bucket tip shroud is shaped differently from the resistered design in the configuration that attracts the attention of the consumer in that the height of the apex in the curved portion of the chevron is substantially the same as that of the upper portions of the tooth plates on the left and right sides, and therefore, when mounted on the bucket, a gap is created between the bucket and the apex, and earth and sand leakage may occur.
Since the common structural details between the resistered design and the design of the Defendant’s Bucket tip had all been publicly known prior to the filing of the design application in question, said common structural details do not attract cunsumers’ attention as a structural characteristics of the resistered design.
<Writer: Hideki Takaishi (Attorney-at-law licensed in Japan and California)>