Country: CH
Tribunal: Gerichtshof (Supreme Court)
Date: 14/07/2003
Case No.: 4 C. 121/2003 Knoblauchpresse/Garlic Press
Design: CH 124925
Citation(s): IIC Vol 35 9/2004 1111, 2004 GRUR 883
Author: David Musker, R G C Jenkins & Co

This was a design infringement action concerning the Pelikan garlic press. The design was registered before the new Swiss law (which has many similarities to the new EU and Australian laws). Held, that whereas the former law had accorded a narrow scope of protection, requiring a side-by-side comparison of the design and the infringement, the overall impression test under the new law had broadened the scope of protection. The test person is the consumer interested in making a purchase. That person will not rely on (long term) memory as he would in remembering a trade mark, but will examine and compare a range of objects relatively briefly, not holding them side by side but relying on short term memory. Thus, when making the comparison, the main dominant elements are decisive, not small differences. However, special design features will catch the eye and influence the decision to purchase.
Note: compare with Procter & Gamble v Reckitt Benckiser.