Baena case: gnomic utterance awaited

On the right, a Community trade mark; on the left,
an apparently valid later registered Community design

"Take that expression off your face - if you want to keep your design" wrote Class 99 team captain David Musker (here), when relating the lamentable tale of the General Court's ruling in Case T-513/09 José Manuel Baena Grupo, S.A. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Herbert Neuman and Andoni Galdeano del Sel. David wrote then:

"As with several earlier General Court and OHIM decisions, the citation was taken "as a whole" and no thought was given to comparing like with like - since the design has no mouth, surely the fair comparison is to compare that part of the citation without a mouth to the design? In the context of an infringement, the implication of the General Court's approach is that one could take the entirety of a design, add something and thus avoid infringement. Is that right? What do you think, dear readers?".

Since most dear readers did not take the trouble to think or -- if they did -- they didn't take the trouble to tell Class 99, the unsuccessful party has had to take the step of appealing to the Court of Justice of the European Union, whose gnomic utterance we eagerly await.

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Stop press: I've just noticed that there are two separate appeals in this case. In Case C-101/11 P the appellants are Herbert Neuman and Andoni Galdeano del Sel while in Case C-102/11 P the appellant is OHIM itself.