Interlego Ag v. Tyco Industries Inc and Others

IN THE COURT OF APPEAL

1986, No. 43
(Civil)

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Fuad & Clough, JJ.A.

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RIDER

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Sir Alan Huggins, V.-P.:

1. Since we delivered judgment in this appeal it has been pointed out to us that the record of appeal which had been placed before us was inaccurate in that the document purporting to be a copy of Jones, J.'s judgment was in fact a copy of an uncorrected version, which the judge had subsequently amended. The amendment related to the standard wheel hub or "wheel hub with knobs" (Ex.L31: see drawing No.2441 dated 14th November 1968 at p.1590). There was no post-1972 drawing of this component. It seems that the judge did not find that there was no infringement of this drawing: there was another component, described as “wheel hub with knobs (carriage wheel)”, which was never mentioned to us but the drawing of which was the one which he found not to have been infringed. This, of course, explains why Ex.L31 was (properly, on his reasoning) included in the judge's order. However, we have held that there was no copyright in the pre-1973 drawings, so it should now be excluded.

2. It seems also to be agreed that the Tyco “adapter brick” was in fact formally put in evidence before the judge, whereas we understood that it was not. We are told that what happened was that inadvertently the judge was never asked to give it an exhibit number. There was no direct equivalent in the Interlego range: it was produced by Tyco because the standard Tyco 2 x 4 brick was not compatible with the Tyco pre-school series. If the adapter brick infringed any copyright (and it is agreed by the parties that the judge held that it did), it was the copyright in the Interlego drawing of the 2 x 4 brick (No. 300100 dated 27th April 1976 at p.1531): we are agreed that there was no subsisting copyright in the earlier Interlego drawings. It was the Interlego 1976 standard brick which Tyco admitted having measured. The top, the sides and the ends of the adapter brick are distinguishable from those shown on drawing No. 300100 only with difficulty. It is only when one looks at the underneath (which is invisible when the brick is in use) that obvious differences are seen. The other members of the court take the view that those differences are such that the adapter brick is not a substantial reproduction of the Lego brick. Not without hesitation I take the view that, as we are concerned with substantial similarities as well as with substantial differences, there has been substantial reproduction. The majority view will prevail, and the judgment of the court is that there was no infringement of copyright by t he adapter brick.

6th May 1987.