Novelty v individual character – It’s the nose, stupid!

In one of the most recent decisions of OHIM’s Board of Appeal interested readers will find juicy comments on novelty and individual character. While, says the Board, Article 6 (individual character) refers to the notion of the “informed user” to be “identified on the basis of the class of products within which, according to the application for registration, the design itself is intended to be incorporated”, Article 5 (novelty) allegedly does not specify such a referenced person. OHIM, therefore, would be asked “to assess the differences on the basis of the overall appearance of the designs in question”. Furthermore, according to OHIM, the informed user is generally “not technically experienced or particularly interested in the technical design” of colanders (this is what the invalidated Community design was registered for). Hence, says OHIM, this user won’t pay attention to “every detail of the device. Instead, he will undertake an overall view including inter alia the attractiveness of the design and the practicability of the device.”

While this guidance on delimiting novelty and individual character is helpful per se, it appears questionable how to take it into account in daily business. If OHIM is right, the novelty test would have to be carried out by each individual judicial body (OHIM or a Community design court), whereas the individual character test would require to don the spectacles of an informed user – but isn’t it in the end still the nose of the judicial body on which the spectacles would be found?