OHIM Invalidity Division, Decision of 12 November 2010, ICD 000006799
WM. Wrigley JR Company (Wrigley) is the owner of a Community design for blister cards. Cadbury Holdings Ltd (Cadbury) applied for the declaration of invalidity on the grounds that the Community design lacked individual character and that its features were solely dictated by its technical function.
Please click here to view Wrigley's Community design
As evidence, Cadbury provided several examples of prior designs, inter alia pictures of blister cards from different databases and earlier U.S., European and Spanish patents.
Please click here to view the Nicomed blister card
Please click here to view the U.S. and European patent
Wrigley replied that its Community design was new and had individual character since there were a number of differences between its design and the prior designs, in particular "in the prior art, the packaging of the cells was significantly less tight."
With regard to the technical function of Wrigley's Community design, OHIM's Invalidity Division said that the shape of the design was not solely dictated by its technical function. The technical function of a blister card was to hold one or more tablets in individual compartments and was not dependant on the number of blister cells. This function might also be achieved by alternative designs with a different arrangement of the cells.
Comparing Wrigley's Community design with the various designs of blister cards Cadbury had submitted as evidence, OHIM said that because of the differences between the designs which did not only concern immaterial details, the designs could not be considered identical and therefore Wrigley's Community design did not lack novelty.
With regard to the individual character, OHIM held that the freedom of the designer, in particular as to the shape, size and material of the design, was limited by the requirement that a blister cell needs to hold a tablet, while the backing card must seal the cells around the open ends. Therefore, different elements or shapes could produce a different overall impression.
OHIM found that Wrigley's Community design was very compact and streamlined, with tightly packed square cells and a narrow border of the backing cards around the cells, whereas the earlier designs showed widely spaced cells with either large areas of backing sheets visible or no backing cards visible at all. The tight spacing in Wrigley's design enabled the arrangement of 16 cells in a 4x4 configuration, whereas in the earlier design this result was not reached. These differences had an impact on the global aspect of the Community design, thus producing a different overall impression. Therefore, Wrigley's did not lack individual character.
OHIM's Invalidity Division concluded that Wrigley's Community design was valid and dismissed Cadbury's application.