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Designs and “complex products”

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11/03/2015

Under Article 4(2)(a) of the Community Designs Regulation [1], a design applied to or incorporated in a component part of a complex product is considered to be new and to have individual character – and therefore to be capable of registration – only if the component part remains visible during normal use.

This principle was in issue in a recent case to be heard by the General Court, Argo Development and Manufacturing Ltd v OHIM [2]. The case concerned the design for a folding advertising sign. (The design is depicted in the judgment, available here.) The proprietor of several earlier designs sought a declaration of invalidity on the grounds that the handles were not visible during the use of the product and also on the grounds of lack of novelty and individual character.

The General Court rejected the argument on visibility on the basis that the design in question was not a complex product so that the question of the visibility or otherwise of the handles was not a relevant consideration. The Court went on to find that the differences in the handles between the competing designs was such as to render the design in suit distinctive. On the issue of individual character, the Court considered that the shape of the cardboard and its division into foldable pleats constituted features in relation to which the designer had a limited degree of freedom and that the handles played an essential role in creating a different overall impression on the informed user.

As well as highlighting the importance of establishing whether a product is a “complex product” in cases where visibility of the design in suit, the case also shows the importance of determining the extent of design freedom enjoyed by the designer, a relevant consideration in establishing the existence of individual character [3]. In this case the General Court found that the scope of design freedom enjoyed was very restricted and that, taking that limited freedom into consideration, the design did create an overall different impression on the informed user.

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[1] Regulation 6/2000/EC
[2] Case T-41/14
[3] Article 6(2) of Regulation 6/2000/EC

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