February 2009
Virgin Claim Gets Put to Bed
Last month saw Richard Branson’s Virgin Atlantic clash horns with of its interior designers, Premium Aircraft Interiors Group Ltd and Premium Aircraft Interiors UK Ltd or Contour for short. The decision threw up some useful if uncontroversial points on design infringement and patent infringement. Virgin claimed Contour had copied the design of its Upper Class Suite (UCS) seat in supplying a similar seat to Air Canada.
UCS was an inward herringbone design - it faced inwards towards the aisle with the ability for the upper part of the seat to flip over to form a padded cushion, which combined with the seat chair and the ottoman, made a flat seat bed (the so-called “True Bed Meaning”). In addition to unregistered designs rights in the design, Virgin had a patent for the seat and seating system which was the commercialisation disclosed by a UK patent.
Virgin alleged that Contour had manufactured other seats (known as Rock, Solar Eclipse and Solar Premiere) which infringed the unregistered design rights and the patent and that in working up the designs of the seats, Contour and its external designers Acumen had infringed Virgin’s unregistered design rights in parts of the UCS. The UCS was designed by Virgin’s in-house design team in collaboration with design agency Pearson Lloyd and entered service in November 2003.
The court found that despite the fact that Contour had also manufactured the UCS; the Rock, Solar Eclipse and Solar Premiere designs had been independently designed (as opposed to copied) and it was only the general idea of inward herringbone configuration which was found in both designs. In addition, on a construction of the patent what made Virgin’s patent novel (the “True Bed Meaning”), was not present in the alleged infringement. On the facts Contour had successfully designed around Virgin’s patent so as not to infringe.
Briffa Comment
Fewer design cases get to court which means there is not much court guidance on what is an infringement and what is novel. Therefore while this case does not offer anything new it assists in identifying how the courts interpret such key concepts in IP. On the facts Virgin failed to show copying, requirement for unregistered design infringement. If Virgin had registered the design of their seat then they could have avoided this hurdle. On the patent point while Virgin managed to successfully defend the validity of their patent they ended up shooting themselves in the foot when it came to infringement. Again this is a reminder on the importance of patent claims which can prevent infringers getting around the patents.
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