In its latest decisions on design law the General Court had to decide in two parallel cases on the validity of two designs of armchairs over the same prior art:
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The Board of Appeal had confirmed individual character of design B but denied individual character of design A. Both actions brought before the General Court were based on infringement of Article 6 CDR, i.e. the question of whether the allegedly invalid design displayed individual character.
In its decisions the General Court in a first step confirmed the concept of the informed user as being neither the well-informed and reasonably observant and circumspect average consumer who normally perceives a design as a whole and does not proceed to analyse its various details, nor an expert or specialist capable of observing in detail the minimal differences that may exist between the designs at issue. Thus, the qualifier “informed” means that, without being a designer or a technical expert, the user knows the various designs which exist in the sector concerned, possesses a certain degree of knowledge with regard to the features which those designs normally include, and, as a result of his interest in the products concerned, shows a relatively high degree of attention when he uses them (this definition is based on PepsiCo v Grupo Promer; cf. BARDEHLE PAGENBERG IP Report 2011/V). In the present case the informed user is a person who “habitually purchases” armchairs and puts them to their intended use and who has acquired information on the subject, inter alia, by browsing through catalogues of armchairs, going to relevant shops, downloading information from the Internet, or who is a reseller of those products.
In a second step the Court turned to the degree of freedom of the designer as being constrained by features imposed by the technical function of the product or an element thereof or by statutory requirements applicable to the product. Those constraints result in a standardisation of certain features, which will thus be common to the designs applied to the product concerned (cf. Kwang v Honda; BARDEHLE PAGENBERG IP Report 2011/ IV). In the present case, the Court found that the freedom of the designer of armchairs is almost unlimited since armchairs can take any combination of colors, patterns, shapes and materials and that the only limitation for the designer is the fact that armchairs have to be functional, i.e. they must include at least a seat, a backrest and two armrests, and legs. In this context, the Court emphasized that a general design trend cannot be regarded as a factor that restricts the designer’s freedom.
Turning to the comparison of the overall impression the Court found that the only relevant difference between design A and the prior design consisted in the fact that the contested design included three cushions, which were not present in the earlier design. But, because they are not fixed but removable elements, the informed user will perceive the cushions as less important and be more sensitive to the overall structure of armchairs. With respect to differences regarding the number of plates of the seat of the armchair (in case of design A and B beneath the cushions) the Court confirmed its case law that a part of a product represented in a design that is outside the user’s field of vision will have no great impact on how the design in question is perceived by that user (cf. Bell & Ross v KIN; BARDEHLE PAGENBERG IP Report 2013/II). Since the further differences between design A and the prior design were only marginal the Court upheld the decision of the Board of Appeal.
As regards the comparison of the overall impression of design B and the prior design the Court confirmed the differences identified by the Board of Appeal. Further to the differences of visual appearance, the Court found that the informed user will perceive a higher seat and an inclined backrest and seat as affecting how he will be seated and that those differences will give rise to a different level of comfort. As a consequence the General Court upheld – also in this case – the decision of the Board of Appeal.
The confirmation by the Court of its case law regarding the informed user and the freedom of the designer – central concepts of European design law – is comforting, increasing legal certainty. Additionally, the present cases gave the opportunity to rule on how the informed user perceives the designs in question. The Court found that (i) the informed user will perceive removable elements as less important, (ii) parts of a product represented in a design that are outside the user’s field of vision will have no great impact on how the design in question is perceived, and (iii) the informed user will also perceive differences that will give rise to a different level of comfort of the armchairs in question.
While the decision may well be correct in the result, these findings still leave room for some questions. As regards the first finding, the presence or absence of cushions must have some impact on how the chairs are perceived, and this should be true regardless of whether the cushions are fixed or not. The “field of vision” notion seems to go against the need to analyse the respective designs in all their aspects. Also the third finding – elements increasing the comfort of use – seems surprising since the CDR protects the appearance of the whole or a part of a product, and the effect or purpose of a particular element of a design – “comfort” in the present case – would seem to go beyond the normal manner of analysing two designs. We shall await further judgments of the Court with interest.