On 9 September 2014 (Case T-494/12), the General Court of OHIM delivered a judgment in an invalidity proceeding on a registered design for ‘cookies’ showing a picture of the outer and inner appearance of a biscuit with a filling by a sectional plane.
Providing a picture of a biscuit which looked quite alike was in itself not sufficient to conclude the biscuit lacked individual character. The Board of Appeal (BoA) held that the registered design was invalid, because the layer of filling inside the cookie could not be taken into consideration for the assessment of the individual character, as it did not remain visible during normal use of the product. The Court upheld this argument even though the layer of the filling inside the cookie becomes visible in normal use as a cookie will be broken during its consumption.
Also, the question was raised whether Article 4(2) of the Regulation, the provision on a component part of a complex product, could apply here. Could this provision apply to things other than spare parts for cars or hoovers? According to the General Court, it does. This set of Articles of the Regulation could indeed be invoked on different products, provided all conditions are met. The greatest challenge in such cases would be to demonstrate that the visible features of the component part are in themselves novel and bear individual character.
If a less restrictive interpretation of visibility during normal use is accepted, it is not just fancy imagination to believe that this challenging requirement can actually be met. For example, 3-D printing, also of food, is something rather hot. A whole new world of food with surprising new textures and/or (edible) materials may be expected within some years’ time.
In view of the rapidly changing world in which design and art mingle and when we take into account OHIM Convergence Programs on Designs, it might not be a bad suggestion to consider the possibility of protecting the newly created appearances of future innovations or creations by Community Designs.