Twisting the flavour falls flat?

There's been a dispute about fries - French fries to be precise. J.R. Simplot Company holds a design registration for various twisted shapes (sketch right). McCain Foods was about to start selling 'Rustic Twist' potatoes, which are not much different to look at (right). Design infringement or not?

Simplot issued proceedings against McCain in a number of countries, including the Netherlands. And one of McCain's defences, also in the provisional relief proceedings at the District Court of The Hague, was that the design right was invalid: surely these shapes had been in existence for ages? Also, McCain's twisted potatoes were sufficiently different. The Dutch judge disagreed. Simplot's design right created a different overall impression than the existing potato shapes. The design is novel, with an individual character, and is therefore valid. And the Rustic Twist didn't create any different overall impression for the informed frying user than the design, so that there was an infringement. Another factor was that McCain was already aware of Simplot's design right, so it brought the (legal) risk of infringement proceedings upon itself. An EU-wide ban was the result.

Moïra Truijens