Last week's ruling of the Court of Justice of the European Union in Case C‑281/10 P, PepsiCo, Inc. v Grupo Promer Mon Graphic SA, Office for Harmonisation in the Internal Market, has so far received less attention than it deserves. So, says the IPKat, let's take a little look at it.
|A handful of pogs|
This time it was Grupo Promer's turn to appeal, which it did with some success before the General Court. That august tribunal annulled the Board's findings, holding that the differences between the designs at issue were insufficient to produce a different overall impression on the informed user. Now there was nothing fot it but for PepsiCo to appeal to the European Union's top tribunal, the Court of Justice, and ask it either to set aside the General Court's decision or to send the case back to that court for further consideration.
Last Thursday the Court of Justice decided, dismissing the appeal, that the General Court had got it right.
PepsiCo first objected essentially that the General Court agreed that the central circular shape, the raised edge and the similar dimensions of the respective pog designs were not the result of a constraint on the designer’s freedom, an error that led the court to assess incorrectly the overall impression produced by each of the designs in conflict. This was always going to fail: the Court of Justice deals with appeals on legal grounds only doesn't interfere with the General Court's findings of fact unless they're so distorted that they must have constituted some sort of collective aberration on the part of judges. That was not the case here.
What about the informed user's attention level? The Court of Justice agreed that the informed user was not the well-informed and reasonably observant and circumspect average consumer who normally perceives a design as a whole and does not proceed to analyse its various details. Nor is he an expert or specialist capable of observing in detail the minimal differences that may exist between the two designs. Further,
"... the qualifier ‘informed’ suggests that, without being a designer or a technical expert, the 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".Bearing this in mind, the General Court had not erred in its finding.
The IPKat notes that the decision appears to be well received by the design community in Europe. It contains no surprises, except for Merpel who cannot conceive how a system that takes the best part of a decade from start to finish when determining whether a pog design is entitled to Community design protection can serve the best interests of the innovative and creative industries which, we are told with increasing frequency, depend upon design protection in order to encourage and protect investment in a cruel world of copyists.
More on pogs here
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