IPPT20100622, GCEU, Shenzhen v BHIM26-06-2010 Print this page
Made available to the public at trade fair and specialised press
• The circles specialised in the conference units sector, operating in the European Union, follow the trade fairs and specialised reviews of that sector in the normal course of business.
Comparison overall impressions
• The obligation to make a comparison between the overall impressions produced by the designs at issue does not preclude the possibility of taking into consideration, as representations of one and the same earlier design, features which were made available to the public in different ways, in particular, first, by the publication of a registration and, second, by the presentation to the public of a product incorporating the registered design.
• Therefore, although the design reproduced in paragraph 4 includes supplementary features by comparison with the international design, in respect of the inside of the cover and the upper surface of the body of the device, which is under the cover, it comprises all the aspects of the appearance of the international design.
Informed user – no technical expert
• With regard to the interpretation of the concept of informed user, the status of ‘user’ implies that the person concerned uses the product in which the design is incorporated, in accordance with the purpose for which that product is intended.
• However, contrary to what the applicant claims, that factor does not imply that the informed user is able to distinguish, beyond the experience gained by using the product concerned, the aspects of the appearance of the product which are dictated by the product’s technical function from those which are arbitrary.
Degree of freedom of designer
• Restrictions concern the presence of certain features in the conference unit, but do not have a significant impact on their configuration and, therefore, on the form and general appearance of the conference unit itself. In particular, it does not seem that a hinged element would be necessary in order to ensure any of the device’s functionality.
• With regard to the alleged general trend favouring small, flat, rectangular devices, often including hinged elements, it should be observed that the question whether a design does or does not follow a general design trend is relevant, at the most, in relation to the aesthetic perception of the design concerned and can therefore, possibly, have an influence on the commercial success of the product in which the design is incorporated. By contrast, it is not relevant in the examination of the individual character of the design concerned, which consists in verifying whether the overall impression produced by it differs from the overall impressions produced by the designs made available earlier, irrespective of the aesthetic or commercial considerations.
Earlier design and contested design produce the same overall impression
• In view of what has just been stated as to the degree of freedom of the designer of a conference unit, it must be considered that the overall impression produced by the contested design is determined by the following features:
• It should be considered that the stylised decoration on the contested design cannot offset the similarities found and is not, consequently, sufficient to confer individual character on the design.