Tuesday, 25 June 2013

Small differences in designs may not be insignificant

In Case T-68/11, Kastenholz v OHIM, the General Court confirmed that this registered Community design:

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representing watch dials was valid over earlier designs protected by German copyright law (which I won't bore you with). The earlier designs changed colour or intensity according to the time: the registered design's dials were coloured uniformly, which amounted (according to the Court, and I suspect to most sensible people) to a significant difference between the designs. The Court therefore decided that the registered design possessed the necessary quality of novelty (but was the novelty in the appearance of the design, or in the function of the watches? We are on tricky ground here, where form and function are difficult to distinguish). The Court also rejected the argument that the design lacked individual character.

The interesting point to note, I think, is the Court's observation that even though the differences were small the informed user would attach a great deal of importance to the appearance of articles like this and would not regard even small differences as insignificant.

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