HL Deb 02 November 1988 vol 501 cc339-40

244 Clause 248, page 108, line 14, leave out from 'not' to end of line 15 and insert 'normally taken into account to a material extent by persons acquiring or using articles of that description'.

Lord Young of Graffham

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 244. I think it would be convenient for the House if I spoke also to Amendments Nos. 332 and 334.

These amendments will not produce any significant change in the existing law. Indeed, apart from correcting some cross-references, all that they do is state explicitly the test of registrability which is implicit in the existing law as set out by the Judical Committee of the Privy Council in the recent Lego case.

Moved, That the House do agree with the Commons in their Amendment No. 244.—(Lord Young of Graffham.)

Lord Williams of Elvel

My Lords, I am very glad that we have come back to Lego, which is a source of abiding interest to myself and indeed to my grandson. I find the drafting of Amendment No. 244 to be very extraordinary indeed. I read it out for your Lordships: normally taken into account to a material extent by persons acquiring or using articles of that description". This seems to introduce some curious paradoxes into the English language and into the law. I do not know whether the noble Lord buys, acquires, or uses articles and I do not know whether he normally takes into account "to any material extent". How you prove this one way or another I have no idea. I want to point out that I believe that this is a very difficult amendment for the courts to cope with.

Lord Young of Graffham

My Lords, I must confess to the noble Lord that I have only daughters and, at the moment, one granddaughter, so I am not yet in the business of buying Lego. But I look forward to having that opportunity in the future.

The purpose and effect of the amendment is to stiffen the test of whether a design can be registered under the Registered Designs Act to bring it into line with the test in the judgment of a recent Privy Council case. Previously the Bill required that the aesthetic appearance of an article should matter to customers and the amendment requires that it must "normally" matter; that is, it must matter to customers in general and not merely to a specially selected group of customers.

On Question, Motion agreed to.