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The importance of a design’s overall impression

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07/03/2014

Under Article 6 of EC Regulation No 6/2002, a design is capable of registration as a Community registered design if it is “new” and has “individual character”. Article 6 outlines that a design will be considered to have an individual character if the overall impression it produces on an informed user differs from the overall impression produced on such a user by any design that has been made available to the public.

The overall impression on the informed user was at issue in Gandia Blasco SA v OHIM [1]. The contested design was for “armchairs, loungers”. Its validity was being challenged on the basis of an earlier Community registered design for “armchairs”. The challenge had been rejected by the Invalidity Division and an appeal to the OHIM Board of Appeal was dismissed. From there, the intervener appealed to the General Court of the European Union.

The General Court reminded itself that in considering the overall impression on the informed user, it was necessary, under Article 6(2), to take into consideration the designer’s degree of freedom in developing the design. That freedom was to be established by reference to the constraints of the features imposed by the technical function of the product or its elements or by applicable statutory requirements. The greater the degree of design freedom enjoyed by the designer, the less likely it was that minor differences between the competing designs would be sufficient to produce a different overall impression on the informed user. The General Court also considered the attributes of the notional informed user. Although not a designer or technical expert, he or she would know the various designs which existed in the sector concerned, would possess a certain degree of knowledge with regard to the features those designs normally included and would show a relatively high degree of interest when using the designs.

The General Court agreed with the Board of Appeal that the overall impression of the earlier design was not such as to deprive the contested design of its individual character under Article 6. In particular, whereas the earlier design had rectangular frames, the design in issue had square frames and the different seat heights of the two designs meant the designs differed in their proportions. The General Court identified a number of additional differences between the two designs, all of which helped towards the creation of a distinctive overall impression.

The case is a useful reminder of the approach the courts will take towards the assessment of individual character for Community registered designs.

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[1] Case T-339/12

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