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View PDF Brochure & DesignWrites December 2015 December General Court of the European Union PRESS RELEASE No 98/15 Luxembourg, 10 September 2015 Judgments in Cases T-525/13 and T-526/13 Press and Information H&M Hennes & Mauritz v OHIM — Yves Saint Laurent (handbags) The General Court dismisses the actions brought by H&M against the registration of two Yves Saint Laurent bag designs 1 According to the Regulation on Community designs,1 registered designs are to be considered to 2 have individual character if the overall impression they produce on an informed user2 differs from the overall impression produced on such a user by any design made available to the public before the date of filing the application for registration. The individual character of a design is to be assessed by taking into consideration the degree of freedom of the designer in developing the design concerned. In 2006, the Office for Harmonisation in the Internal Market (‘OHIM’) authorised the registration of two Community designs of the French company Yves Saint Laurent (‘YSL’), which were intended to be applied to ‘handbags’: Welcome to the seventh edition EU: Yves Saint Laurent of DesignWrites successfully defends the At Bird & Bird we’re passionate about design. DesignWrites validity of its handbag design will unravel and explore the seemingly complex world of design On 10 September 2015, the General Court (GC) upheld protection, offering practical advice by looking at recent design the validity of a registered Community design (RCD) By Ewan Grist cases, hearing from industry experts and sharing stories from for a handbag owned by Yves Saint Laurent. London the wider design community. [email protected] Get in touch YSL is the owner of an RCD for a handbag, two representations In November 2011, OHIM’s Cancellation Division rejected of which are shown below: H&M’s application, finding that the RCD was valid. H&M If you would like advice on how best to protect your designs or take action appealed but this was dismissed by OHIM’s Board of Appeal to stop copycats, please contact Ewan Grist via [email protected] (BoA) in July 2013, which found that despite a number of similarities, the significant differences with regard to the shape, structure and surface finish of the respective designs were decisive in a different overall impression being created on the informed user. This was despite the BoA finding that the degree of design freedom for handbags was high In 2009, H&M Hennes & Mauritz (‘H&M’) filed with OHIM two applications(the greater the design freedom, for typically a thedeclaration greater the of In 2009, H&M Hennes & Mauritz (‘H&M’) filed with OHIM two applicationsdifferences that will be required for to createa declaration of a different overall impression). invalidity in respect of the designs registered by YSL, on the groundH&M appealed that the BoA’s decisionthey to the had GC. However, no individual the GC found that the BoA had correctly addressed the Source: CURIA database In this edition... character. In support of its application, H&M invoked this earlierrelevant design issues, including: assessing both the similarities H&M had applied to OHIM to invalidate the RCD on the basis and differences and their respective impact on the overall EU: Yves Saint Laurent successfully defends the validity Q & A with leading British designer, Trunki ......................12 that it lacked the requisite individual character for validity when impression created, taking into account the high level of of its handbag design ...................................................... 01 design freedom. The GC made clear that the starting point EU: General Court (GC) finds storm umbrella compared with an earlier handbag design, shown below: for the assessment of individual character of a design is the design to be valid ............................................................14 China: Partial designs of graphic user interfaces (GUIs) perception of the informed user and that design freedom become protectable ........................................................04 U.S. Focus: On the design protection is merely a factor (albeit an important one) to be taken into UK: Webmarking of product designs to be introduced .... 06 in the United States .........................................................16 account so as to moderate that perception. The degree of design freedom is not therefore the starting point for Community designs: Different scope of prior art for UK: Repeal of Amendment to Increase Length of Copyright the assessment of individual character per se, but simply novelty and individual character? ...................................08 Protection of Industrially Manufactured Articles ............. 22 something that should be taken into consideration in the assessment. Having found no fault with the BoA’s approach, The Netherlands: Community designs, colourful even Upcoming industry events & awards ............................... 24 the GC upheld the validity of the RCD. in black-and-white .......................................................... 10 Source: CURIA database EU: Yves Saint Laurent successfully defends the validity of its handbag design & 01 1 Council Regulation (EC) No 6/2002 of 12 December 2001 (OJ 2002 L 3, p. 1). 2 2 The informed user is a user who is particularly observant, either because of his personal experience or his extensive knowledge of the sector in question. That user knows the various designs which exist in the sector concerned, possesses a certain degree of knowledge with regard to the features which those designs normally include, and, as a result of his interest in the products concerned, shows a relatively high degree of attention when he uses them. www.curia.europa.eu Comment This is the latest in a long line of high profile design cases in the fashion industry, again demonstrating the importance that design registrations play in this world. Determining the degree of design freedom is extremely important (although not necessarily decisive as this case shows) in both invalidity and infringement actions. In both, the question of whether the claimant’s design creates the same overall impression on the informed user as the prior art design (in the case of an invalidity action) or the competitor’s design (in the case of an infringement action) needs to be answered, taking into account the degree of design freedom. Where design freedom is limited (perhaps due to the need for the product to perform a technical function), only smaller differences will be required for the respective designs to create a different overall impression. Conversely where design freedom is unfettered, larger differences are needed. Design freedom is normally more limited for technical products (e.g. vacuum cleaners) than it is for fashion products, as was the case here where it was held that handbag designers had a high degree of design freedom. Insofar as the GC’s decision confirms that design freedom is simply a factor to be taken into account when comparing the overall impressions created by the respective designs, rather than a separate test, it is uncontroversial. However, as a practical matter, given the importance of the degree of design freedom which exists for a particular product, this issue may need to be addressed in evidence, preferably from a suitably qualified design expert in that field. 02 & EU: Yves Saint Laurent successfully defends the validity of its handbag design China: Partial designs of graphic user interfaces (GUIs) become protectable A proposed change to Chinese patent law, allowing for the protection of partial designs including graphic By David J. Pountney and Alison Wong user interfaces (GUIs), will be welcome news to Hong Kong the mobile phone and software industries. [email protected] [email protected] With the continuing rapid technological development in the In the near future, following the most recent amendment to mobile phone industry, coupled with intense competition Chinese patent law, published in draft form in June 2015 by for market share, the protection of GUIs displayed on the State Intellectual Property Office (SIPO), partial designs communication and electronic products as industrial designs are set to become fully patentable subject matters. has recently become a hot topic in China. According to the draft, the definition of ‘design’ is changed In the European Union, GUIs can potentially be protected to any new design of the shape or pattern of a product as a design rights and/or copyright respectively. However, in whole or a ‘portion thereof’. Therefore, once in force it will China the protection of GUIs has not been straightforward. It be possible to protect a GUI or a pattern shown only in the was not possible to protect partial designs as only protection powered-on state, without the limitation of protecting the for the overall design of a product was allowed. That meant, GUI or pattern as a portion of the complete product. This is for example, that a mobile phone manufacturer could not a significant development. apply for a design patent to cover just the design of the GUI In cases of infringement, several enforcement channels are displayed on a mobile device once powered on. available, including administrative and judicial remedies, However, in 2014 the Guidelines for Patent Examination were and enforcement action by Customs officials. There may, revised to allow patterns shown in the powered-on state to however, be limitations in enforcing design patents if a GUI be protected. But because partial design protection is not is used on a different class of goods than for which it was allowed, applicants still have to limit the scope of the design registered. However, in these situations effective protection to a complete product displaying the GUI shown only in the may be available under copyright law. powered-on state. In practice this requirement significantly reduces the value of protection, as the scope of such a design patent is relatively narrow and the design could potentially be replicated by a competitor by substitution or by using it in another product.
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