Mollen / Bakker: protection of the design of technical grippers

Even on appeal from a preliminary relief ruling, Mollen and Bakker concentrated their efforts on the design of grab buckets for mobile cranes and earth moving machines. The most important point at issue was whether Bakker's bucket, the RBOX, had its own place in the market for grab buckets. The Court of Appeal for Arnhem-Leeuwarden did indeed reach that conclusion: "The combination of the domed shape of the shells and the arms, the way the arms connect with the shells, the curving shape of the bridge-piece and the position and (double) function of the safety lock do not appear in the (prior art)". Grab buckets are, of course, utility items whose outward appearance is determined to a large extent by requirements of soundness and practicality. Still, the manufacturers of these grab buckets have some limited scope for making choices as to their shape, and "these choices must be respected by competitors, to the extent that they have to do all they can to avoid confusion." A really good and correct example of how, even with mechanical items, there are virtually always still choices to be made regarding their design. In the first instance, the preliminary relief judge had held that Mollen's grab bucket on the right (Y-GRAB) was a slavish imitation of the one on the left (RBOX), and the Court of Appeal upheld this.

Interestingly, Mollen (the manufacturer of the Y-GRAB) filed a counterclaim with the Court of Appeal for an order against Bakker to accept the amended design of the 'Y-Grab 1'. If that happened, this type of bucket could be introduced to the market. The Court of Appeal made a provisional finding that the Y-GRAB was sufficiently different from the RBOX and was not therefore a slavish imitation, but still dismissed the counterclaim. This effectively boiled down to a declaratory ruling: a finding on legal status, which is only available in proceedings on the merits.

Moïra Truijens