Summary
Case note, written with Stijn Debaene, on a judgment of a Belgian Court of Appeal in a design infringement case between Fermod and Castel concerning hinges for the refrigeration industry. It explains the classic defence known as tangwerking, or pincer effect: if the allegedly infringing design differs from the design relied on at least as much as that design differs from the prior art, either the design relied on is invalid or there is no infringement, because validity and scope of protection are assessed with the same criteria. The authors defend this theory against the criticism of the first-instance judge, which in their view concerned a different and contested theory.
Reference
H. Haouideg et S. Debaene, « La théorie dite « tangwerking » ou « effet tenaille » en droit des dessins et modèles », I.R.D.I., 2017/1, p. 90.