Industrial Property Law

Directive No 98/71 of 13 October 1998 stipulates that the assessment of the individual character of a design must be carried out by determining whether there is a clear difference between the overall impression it produces on an informed user viewing it, and that produced on him by the design corpus. The clear difference is assessed by taking into account the nature of the product to which the des …

Assessment

Directive No 98/71 of 13 October 1998 stipulates that the assessment of the individual character of a design must be carried out by determining whether there is a clear difference between the overall impression it produces on an informed user viewing it, and that produced on him by the design corpus. The clear difference is assessed by taking into account the nature of the product to which the design is applied or in which it is incorporated and, in particular, the industrial sector to which it belongs and the degree of freedom of the creator in developing the design (recital 13) .

The European General Court has established a four-step method for assessing individual character  . This examination consists of determining, firstly, the sector of products into which the design is intended to be incorporated or to which it is intended to be applied, secondly, the informed user of the said products according to their purpose and, with reference to this informed user, the degree of knowledge of the prior art as well as the level of attention in the comparison, direct if possible, of the designs, thirdly, the degree of freedom of the designer in developing the design and, fourthly, the result of the comparison of the designs in question, taking into account the sector concerned, the degree of freedom of the designer and the overall impressions produced on the informed user by the contested design and by any earlier design disclosed to the public. However, in an earlier ruling on 21 September 2017, the Court of Justice of the EU set aside the first criterion, holding that the protection of a design does not depend on the nature of the product in which that design is incorporated or to which it is applied . The General Court subsequently made limited use of the four-stage test, but has nevertheless applied it in a number of recent judgments .

The fact that a design is part of a tradition, such as the Nordic furniture tradition , or the existence of a general design trend in the field in question , does not necessarily deprive the design of its individual character. Furthermore, the criteria of originality, likelihood of confusion  or creative effort  are in principle irrelevant to the assessment of individual character. However, certain rulings sometimes mix the conditions of validity of design law with those of copyright law, considering that creative effort , aesthetic research , originality  or the aesthetic bias of the designer  confer an individual character on the design.

Case C-345/13 Karen Millen Fashions Ltd, Judgment of 19 June 2014, LawLex201400002124JBJ; CA Paris, 7 April 2015, LawLex202100003278JB.

Case T-41/14 Argo Development and Manufacturing Ltd, Judgment of 28 January 2015, LawLex202300008962JBJ; Case T-251/14 Promarc Technics s.c. Tomasz Pokrywa, Rafał Natorski v OHIM, Judgment of 15 October 2015, not available in English.

CA Paris, 27 October 2006, LawLex200800000043JBJ; CA Paris, 31 March 2004, LawLex202200000973JBJ; CA Besançon, 10 December 2002, LawLex200300001007JBJ.

CA Bordeaux, 10 November 2021, LawLex202200000999JBJ; CA Paris, 5 May 2004, LawLex200600001407JBJ.

Joined cases C-361/15 P and C-405/15 P Easy Sanitary Solutions BV v EUIPO, Judgment of 21 September 2017, LawLex202300008961JBJ, which rejects the criterion of the nature of the product to assess the protection of the product by design law on the grounds that this criterion would amount to limiting protection only to designs belonging to a specific sector.

E.g. Case T-74/18 Visi/one GmbH and European Union Intellectual Property Office (EUIPO), Judgment of 13 June 2019, LawLex202300008979JBJ.

CA Paris, 15 February 2002, LawLex202100003589JBJ.

Case T-153/08 Shenzhen Taiden Industrial Co. Ltd v OHIM, Judgment of 22 June 2010, LawLex202300009003JBJ; Case T-315/12 Tubes Radiatori v OHMI - Antrax It (Radiateur), Judgment of 12 March 2014, not available in English.

CA Paris, 30 March 2017, LawLex202100003280JBJ.

TGI Paris, 30 March 2017, LawLex202100003280JBJ; CA Paris, 7 April 2015, LawLex202100003278JBJ.

CA Paris, 28 January 2009, LawLex202200001359JBJ; CA Paris, 27 October 2006, LawLex200800000043JBJ; CA Douai, 9 September 2008, LawLex201000000828JBJ.

CA Paris, 28 January 2009, LawLex202200001359JBJ; CA Paris, 31 March 2004, LawLex202100004669JBJ; CA Montpellier, 8 March 1994, LawLex200004921JBJ.

Industrial Property Law

440. Assessment

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440. Assessment

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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