Nov 19, 2015

Design of Honeycomb structure lacks Individual Character

Promarc Technics S.C. applied for a Registered Community Design ("RCD") for a honeycomb structure in connection with doors (or a part thereof) as shown below. The application was filed on 7 September 2009 and accepted and granted by OHIM.

To qualify for protection as a RCD the design must be novel and have individual character. The Community Trade Marks Office does not examine design applications for novelty or individual character. The design will only be rejected if an application to invalidate the design is successful.

An application to invalidate this registration was filed on 30 November 2011 on the grounds that the design lacked novelty, individual character and was not visible during normal use. The design was successfully invalidated.  A subsequent appeal to this decision the General Court has recently been rejected.

Promarc submitted evidence to show that their registered design was for a visible part of a swinging door and that the design was a decorative element and this evidence was accepted.  However, the General Court agreed with the invalidity division that the design lacked individual character due to the publication of an earlier US patent application. The US patent No. 4247237 was titled "free standing honeycomb load spacer" and was granted on 27 January 1981.

A design has individual character if the overall impression it produces on the informed user differs from the overall impression produced on the user by any earlier design made available to the public.

In this case the informed user of the door represented in the RCD might be a professional and/or a consumer. The General Court found that the overall impression produced on an informed user by both the RCD and the US Patent was the same, i.e. the image of a door with the insulation in the shape of a honeycomb structure.

The designer's degree of freedom in developing a design is taken into consideration when assessing individual character. The greater the designer's freedom in developing the design, the less likely that minor differences between the designs will be sufficient to produce a different overall impression.  The General Court found that the designer's scope of freedom in this case was broad with the only limitation being that the product is to insulate the space between door frames.

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