Community design and individual character

The General Court of the European Community (formerly First Instance European Court) has confirmed on June 22, 2010, the invalidity of Community Registered design No. 241/903-0001, shown below and intended to be applied to ‘communications equipment’

Bosch Security System BV filed a declaration of invalidity against this design for lack of novelty and of individual character in consideration with :


i) earlier international design No. DM/055655 applying to ‘units for conference system’ ;

ii) a brochure, press cuttings and advertisements of 2000 and 2001 showing a conference unit purportedly identical with the Community design at issue.

The Invalidity Division first rejected the invalidity claim. The Third Board of Appeal however allowed the appeal. The Board found the contested design to be new since it was not identical with the earlier international design but it lacked individual character as the differences with it were not strong enough to produce a difference oval impression on the informed user. The applicant for the Community design then lodged an Appeal before the General Court.

The General Court confirmed that the informed user to consider for assessing the individual character of the design at hands was ‘anyone who regularly attends conferences or formal meetings at which the various participants have a conference unit with a microphone on the table in front of them’.

The General Court then said that the degree of freedom of the designer of a conference unit was relatively wide. The necessary speaker, microphone, buttons, screen and card slot were regarded as features having no significant impact on the general appearance that a conference unit may have. Additionally, the Community design holder produced no evidence showing technical or functional requirement restricting the degree of freedom of such designer or the trend favoring small, flat, rectangular devices on the market at hands.

The General Court concluded that the contested design and the earlier design produced the same overall impression on the informed user, the sole difference being the lid of the hinged speaker which was a minor  difference considering the reduced visibility of the conference unit’s cover when being used.

The decision above is one of only 3 decisions issued in a OHIM Community Design proceeding by the General Court! It interestingly illustrates the profile of the informed user to particularly consider given the nature of the products involved. It also handles the comparison process for assessing the individual character in a very practical and concrete way by considering the conditions of use of the products for which a design right is claimed and from which the level of possible differences is deduced.

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