First Court decision on an OHIM design appeal this Thursday

We are grateful to our friends at OHIM for informing us that the first appeal decision of the General Court (formerly the Court of First Instance) will be handed down on Thursday, in case T-9/07 Grupo Promer Mon Graphic v OHIM - PepsiCo intervening (Représentation d'un support promotionnel circulaire - the Tazos, Rappers or Pogs case).  This is an appeal from Decision R 1001/2005–3 of OHIM's Third Board of Appeal of 27 October 2006, which was itself a reversal of the OHIM Invalidation Decision ICD 000000172 of 20 June 2005, holding RCD 000074463-0001 invalid.
The main reason for reversal within OHIM was a redefinition of the class of article from "promotional items" in general to Tazos in particular, with the consequence that the "design freedom" available was held to be narrow rather than broad and the threshold required to differ from the state of the art was therefore lower.  This is an interesting point but a narrow one.  We therefore hope that the Court will take the chance to educate us more broadly on the "informed user", her differences, if any, from the average consumer who is the trade mark test person (and a familiar figure to the General Court), and the general approach to comparison with the prior art.  Watch this space for an analysis of the decision.