Pingpong pogs at the ECJ

Regular readers will recall the longrunning battle between Pepsico and Grupo Mon Promer over the former's RCD for pogs/rappers/Tazos.  At first instance, the design was revoked; the OHIM Appeal Board reversed; then the General Court re-reversed.  We are pleased to see that the case has now moved up to the ECJ.  After this, no further appeals are possible (although national judges will no doubt feel free to make remarks about how much they'd like to reverse it, or change the law, if they could).
The ECJ case is pending as C-281/10P.  A link to the reference is here.
The grounds are that the General Court violated Council Regulation (EC) No. 6/2002 by:

a)    failing to take into account the constraints on the designer in developing the contested design;

b)    wrongly interpreting the notion of the "informed user" and his attention level;

c)    applying erroneous criteria in its assessment of "different overall impression";

d)    carrying out a comparison between the designs based on actual products in the file rather than on the designs as registered; and

e)    basing the comparison on distorted facts.

As to point (e), we wish them all the best with that since appeals can only be on points of law and this is blatantly a scarcely-disguised point of fact. As to point (d), well, we see the issue, but the UK courts have long held themselves able to look at specimens alongside the design, otherwise it is difficult to compare like with like (the Australian court has disagreed in LED Technologies v Elecspess which, we note, has just been upheld on appeal though not on that point).

Points (a) to (c) should, however, give the ECJ a chance to air its views on the validity threshold and thus, indirectly, scope of designs since the two tests are largely the same.  We'll keep watching this space so you don't have to.