Technical functionality? Start using the correct fax number!

What a missed opportunity for the world of design law – the first case on a Community design’s mere technical functionality having reached Luxembourg, with the vague hope that the apparent disharmony between what the England and Wales Court of Appeal decided in Landor on the one hand and OHIM’s Board of Appeal (here) and, very recently, the England and Wales High Court of Justice in Dyson (reported by class99 here) on the other would yield to Europe’s General Court Solomon-like final chord.

However, the Swedish owner of the invalidated Community design and applicant in the following court proceedings failed to lodge the action at the Registry of the Court in time. Rather, the applicant conceded that the action was lodged late, this lateness resulting from a “genuine misunderstanding of the established practice” for lodging an application with the General Court. In fact, the applicant had lodged the application well within time but only at the offices of OHIM, “in accordance with a well established practice in Sweden”

Unsurprisingly, the General Court dismissed the action as “manifestly inadmis-sible”, meanwhile having been confirmed by the Court of Justice of the European Union rejecting the two grounds of appeal as “clearly unfounded”.

And the lesson of all this? Formalities are much more important than lawyers may believe (and than they tell their clients) – further need for harmonization?