"Design for conference unit held to lack individual character" is the title of this note for World Trademark Review by Franck Soutoul and Jean-Philippe Bresson (INLEX IP EXPERTISE, France). Published last week, it picks up the story in Shenzhen Taiden Industrial Co Ltd v Office for Harmonization in the Internal Market (Case T-153/08, 22June 2010, mentioned at an earlier stage on Class 99 here), in which the General Court held that a registered Community design for "units for conference systems" was invalid. In support of its challenge, Bosch pointed to an earlier international design, also for "units for conference systems", as well as documentary evidence in the form of a brochure, press cuttings and advertisements and showing the design of a conference unit which, said Bosch, was identical to the Community design at issue.The Invalidity Division rejected Bosch's challenge, but the company had better luck with OHIM's Third Board of Appeal. While the Board held that Shenzhen Taiden's Community design was new, since it was not actually identical to the earlier international design, the challenged design lacked individual character, the differences between the two designs being insufficiently noticeable to produce a different overall impression on the informed user.
On appeal, the General Court first established that the informed user was "anyone who regularly attends conferences or formal meetings at which the various participants have a conference unit with a microphone on the table in front of them". After agreeing with the Board that the degree of freedom of a designer of conference units was relatively wide, the court found that the speaker, microphone, buttons, screen and card slot did not have a significant impact on the general appearance of a conference unit. Further, Taiden had produced no evidence that technical or functional requirements restricted the degree of freedom of the designer, or that there was a trend favouring small, flat, rectangular devices on the market at issue. Accordingly the court concluded that the Community design and the earlier design produced the same overall impression on the informed user: the sole difference between them related to the lid of the hinged speaker, the importance of which being reduced because of the limited visibility of the conference unit’s cover when the device is in use.
What I find interesting here is the identification of the informed user with "anyone who regularly attends conferences or formal meetings at which the various participants have a conference unit with a microphone on the table in front of them". Such people are certainly users, since it is they who press the buttons and speak into the mike. But is there then any meaningful difference between an "informed user" and a "user"? The person who is informed is probably a person employed by a conference organiser or conference venue provider, who will be concerned with the appearance, functionality and technical specifications of such systems -- but who doesn't "use" them in the generally accepted colloquial sense of the word.
What I find interesting here is the identification of the informed user with "anyone who regularly attends conferences or formal meetings at which the various participants have a conference unit with a microphone on the table in front of them". Such people are certainly users, since it is they who press the buttons and speak into the mike. But is there then any meaningful difference between an "informed user" and a "user"? The person who is informed is probably a person employed by a conference organiser or conference venue provider, who will be concerned with the appearance, functionality and technical specifications of such systems -- but who doesn't "use" them in the generally accepted colloquial sense of the word.
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