Industrial Property Law

The overall visual impression referred to in Article L. 511-4 of the Intellectual Property Code results from the transposition by the Ordinance of July 25, 2001 of Article 5 of Directive No 98/71, which refers to a “different overall impression”. The overall impression conveyed to an informed user must be different from that left by the relevant prior uses. If this is not the case, the design may  …

Overall visual impression

The overall visual impression referred to in Article L. 511-4 of the Intellectual Property Code results from the transposition by the Ordinance of July 25, 2001 of Article 5 of Directive No 98/71, which refers to a “different overall impression”. The overall impression conveyed to an informed user must be different from that left by the relevant prior uses. If this is not the case, the design may be invalidated .

The trial courts have the final say as to whether the overall visual impression created on the informed observer differs from that produced by any design disclosed prior to the filing date of the application for registration  by carrying out a comparative examination of the designs in question . The prior uses to be taken into consideration in assessing the overall visual impression, and the criterion for disclosure of these prior uses , are the same as for the condition of novelty. Thus, the disclosure of a design prior to filing, which destroys its novelty, also destroys its distinctiveness. The assessment of distinctiveness is made case by case, each prior design taken individually , without the possibility of combining them. Each prior use must be compared as a whole, in all its elements taken in combination , with the design whose distinctiveness is in dispute, also considered as a whole.

In the case of a design consisting of a combination of several elements, the overall impression is assessed in relation to the combination itself. The combination is capable of protection if it gives the informed observer an overall visual impression that sets it apart from similar designs , even if the elements are found separately in earlier designs . The trial courts may exclude from the assessment of the overall impression non-protectable elements that are inseparable from the function they perform .

CA Nancy, 31 October 2016, LawLex202200009260JBJ.

Cass. com., 1 July 2008, LawLex200800001959JBJ.

CA Paris, 16 January 2002, LawLex202100003585JBJ.

Joined cases C-361/15 P and C-405/15 P Easy Sanitary Solutions BV v EUIPO, Judgment of 21 September 2017, LawLex202300008961JBJ. 

Case C-345/13 Karen Millen Fashions Ltd, Judgment of 19 June 2014, LawLex201400002124JBJ; Cass. com., 20 September 2016, LawLex201600001542JBJ; CA Paris, 7 April 2015, LawLex202100003278JB.

Cass. com, 24 May 2017, LawLex202300007821JBJ.

CA Paris, 13 December 2011, LawLex201100001966JBJ; CA Aix-en-Provence, 13 December 2018, LawLex202100004740JBJ, for a synoptic model; CA Paris, 4 May 2018, LawLex202200001362JBJ, for a model of sandals; CA Paris, 5 June 2015, LawLex202200001497JBJ, for a model of bag organizers; CA Paris, 28 November 2001, LawLex202100003584JBJ.

CA Paris, 7 April 2006, LawLex202100003863JBJ, which states that even if the Vichy motifs, the representation of fruit and vegetables or the handwritten inscriptions have already been used on crockery, the combination of all these elements according to the arrangement proposed by the applicant presents an individual and new physiognomy, constituting an original creation.

Cass. com., 28 November 2006, LawLex200600002553JBJ.

Industrial Property Law

437. Overall visual impression

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

437. Overall visual impression

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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