Vs.

In this case, the Board held that the appeal was unfounded because the contested design lacked individual character as it did not produce a different overall impression on the informed user from that produced by the earlier US design. This design was registered as a design patent under US law. The significance of Article 7 CDR is that publication, even outside the Community, has the consequence, as a general rule, that the design can be considered to have been divulged; however, that consequence does not arise where it is shown that it was not reasonable that specialised circles operating within the Community could have become aware of the publication.

In the present case, the Board held that it was reasonable to consider that specialised circles operating within the Community had become aware of the publication of the US design. The general impression was produced by the physical appearance of the product that the technical drawing is meant to represent, not the one produced by the drawing (informed users see products, not drawings). In the Board's view, the Community design produced the same overall impression on the informed user as the earlier US design. Both designs represented a container which is stood upside down – i.e. on the lid – and were produced in an almost identical manner. In respect of designer freedom, the Board considered that there is a certain degree of freedom even when designing containers of this type – i.e. bottles which stand upside down. The shape does not necessarily have to be conical or cylindrical, the rectangular section at the bottom of the container may have a different thickness, etc. The degree of freedom of the designer should be deemed to be limited by functional constraints, not by existing earlier rights. The appeal was dismissed.

Decision of the Third Board of Appeal of 9 November 2007 in Case R 103/2007-3