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Design prior art must be visible

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18/11/2014

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. As we noted in our last newsletter, the concept of “normal use” is only relevant to complex products.

The design in issue in Cezar v OHIM [2] was for a skirting board duct. The OHIM Board of Appeal had previously held that the design lacked novelty and individual character over an earlier design. However, the earlier duct was concealed behind a skirting board when in normal use.

The EU General Court allowed the appeal on the basis that the OHIM Board of Appeal had wrongly considered the prior art to be visible during normal use. The earlier design was part of a complex product and was invisible during the normal use of the product.

The General Court held that, since a design constituting a component part of a complex product which is not visible during normal use of that complex product cannot be protected under the Community Designs Regulation, it followed, by analogy, that the novelty and individual character of a Community design cannot be assessed by comparing that design with an earlier design which, as a component part of a complex product, is not visible during the normal use of that product.

This case is a logical extension of the existing law on visibility of designs as a part of a complex product.

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[1] 6/2002/EC
[2] Case T-39/13

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