Cookies as registered Community designs

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In Biscuits Poult SAS v OHIM [1] the design in issue had been registered as a Community design for “cookies” in 2009. The applicant for invalidity challenged the registration on the basis that the design in question was not new and lacked individual character. It further argued that its appearance was dictated by its technical function and therefore was not capable of registration as a Community design as design features “solely dictated by technical function” are excluded from registration.

The challenge was successful before the OHIM Board of Appeal, from where the proprietor appealed to the General Court.

The General Court rejected the proprietor’s submission that the Board had incorrectly refused to consider the internal appearance of the design of the cookie – namely its layer of chocolate filling – and, as a consequence, had failed to consider the differences between its design and the earlier designs adduced by the applicant for invalidity. It agreed with the Board that, since the chocolate filling only became visible when the cookie was crumbled, the filling did not relate to the appearance of the cookie.

The Court rejected a further submission of the proprietor, namely that the chocolate filling became visible during the “normal use” of the cookie. The concept of “normal use” is relevant to the determination of novelty and individual character; these are judged on the part of the design which is visible during normal use. The Court held, however, that the concept of “normal use” was relevant only to complex products and a cookie did not fall into that category.

The Court concluded that the design of the cookie did not produce on an informed user, being a regular consumer of that type of cookie, a different impression from that produced by the earlier designs, consideration being given to the freedom of the cookie’s designer.

While the idea of cookie designs being the subject of litigation may raise a smile, the case is illustrative of several of the key issues applicable to Community designs registration, in particular the “technical function” exemption, the relevance or otherwise of the design’s internal appearance and the impression on the informed user.


[1] Case T-494/12