Designs that Lack Individual Character
22 September 2011
For most of the time the grass always seems greener on the other side. However, in two recent judgments, the EU General Court got the impression that the grass was the same for Kwang Yang Motor Co. Ltd.
Kwang Yang Motor Co. Ltd. found themselves faced with two applications for a declaration of invalidity in May 2005. Honda Giken Kogyo Kabushiki Kaisha filled the applications with the OHIM challenging two internal combustion engine designs for lawnmowers. The intervener argued that the designs did not fulfil the requirement of new and individual character (Article 6 of the Community Designs Regulation 2002).
The cases trekked through the EU design courts until they ended up with the EU General Court. The court upheld that Kwang’s designs should be declared invalid, based on the earlier rights of a US design. Interestingly the court noted that the user of the lawnmower would view the upper side of the engine when as they stood behind it – it was at this angle the court ruled that constituted the “overall impression” of the design.
The court also advised that there was a high degree of freedom for those who designed engines. People who wish to register designs need to be aware that their application will not be accepted if their design only reflects what is necessary for the functionality of the product.
Finally, the court stated that an informed user would not pay too much attention to the difference in the details, but rather the basic structures of the lawnmower. This is an established rule that it is the overall impression the courts will look to when comparing different designs.
You can find images of these designs and the full judgments on the Europa website by following the links below.