General Court of the European Union, Decision of 22 June 2010, T-153/08 ("Communication Equipment")

The General Court of the European Union upheld the OHIM Board of Appeal's finding that the Community design registered for "communications equipment" is invalid for lack of individual character.

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Bosch Security Systems B.V. (Bosch) filed an application for declaration of invalidity, claiming that the Community design was not new and lacked individual character because it was almost identical to an earlier registered International design.

Bosch also submitted a brochure, press cuttings and advertisements showing pictures of a conference unit which Bosch claimed was identical to the international design.

A fundamental requirement of a Community design is individual character, i.e. it shall comprise sufficient differences with respect to earlier designs at the date of filing of the Community design so that it produces a different overall impression on the informed user (Article 6 of the EC Regulation 6/2002 on Community Designs).

The Invalidity Division of OHIM rejected Bosch's application for invalidity holding that due to the differences in the base, the two designs produced a different overall impression on the informed user. On appeal, the OHIM Board of Appeal reversed the decision.

The General Court of the European Union said that the degree of freedom of the designer of a conference unit was relatively wide. Comparing the designs, the court found that they produced the same overall impression on the informed user. The court remarked that, for the examination of the overall impression, the manner in which the product was used must also be taken into account. Accordingly, the stylized decoration on the lid which remained outside the user's immediate perception when the product was in use was less important and, therefore, insufficient to confer individual character on the Community design.

The court also provided some guidance on the concept of the "informed user." It stated that "informed" suggests a user, who, without being a designer or a technical expert, knows various designs in the sector concerned and has a certain degree of knowledge with regard to the features usually included in such designs. Accordingly, he or she would have a relatively high degree of attention when using them.

As a result, the General Court found that the Community design lacked individual character and was invalid. Consequently it confirmed the decision of the OHIM Board of Appeal.