European Court of First Instance design appeals

There are now 125 design decisions of the OHIM Boards of Appeal reported on OHIM's website. An appeal lies to the General Court (as the Court of First Instance is now known after the Lisbon Treaty). Thus far, for designs, however, only 7 of 125 appear to have been appealed - a remarkably low figure (even allowing for some delay in listing appeals on the OHIM site). What is going on? Are parties happy that OHIM has got it right, is CFI procedure intimidating and expensive, or are designs simply not worth the money and the wait?

Here are the "magnificent seven" design appeals listed by OHIM so far:

Appeal Nº: R1323/2008-3 Date: 14/10/09
Application Nº: 4885
RCD: Ornamentation
Language: ES
CFI: T-0513/09

Appeal Nº: R1411/2007-3 Date: 07/07/08
Application Nº:
RCD: (flacons)
Language: FR
CFI: T-0450/08

Appeal Nº: R1437/2006-3 Date: 11/02/08
Application Nº:
RCD: communications equipment
Language: EN
CFI: T-0153/08

Appeal Nº: R1352/2006-3 Date: 31/01/08
Application Nº:
RCD: instruments for writing
Language: EN
CFI: T-0148/08

Appeal Nº: R1337/2006-3 Date: 08/10/07
Application Nº:
RCD: Internal-combustion engine
Language: EN
CFI: T-0010/08

Appeal Nº: R1380/2006-3 Date: 08/10/07
Application Nº:
RCD: Internal-combustion engine
Language: EN
CFI: T-0011/08

Appeal Nº: R1001/2005-3 Date: 27/10/06
Application Nº: 74463-0001
RCD: metal rappers
Language: EN
CFI: T-0009/07

What should we expect of these? CFI statistics show that IP cases (OHIM appeals) now make up a third of its workload. The Court has become pretty acclimatised to trade mark cases, and pursues a similar line to OHIM, so that the reversal rate is low - 12% in 2008. Perhaps low expectations are the real reason for the low design appeal rate.

This week - European CFI hears design appeal

Tomorrow Tuesday 19th January is the Hearing date for European Court of First Instance case T-153/08, Shenzhen Taiden v OHIM - Bosch Security Systems intervening. This is the second stage appeal on RCD 214903-0001, a conference call speakerphone. The design was upheld at first instance by the Invalidation Division of OHIM, but that decision was reversed on appeal, the Board of Appeal (in Decision R 1437/2006-3) taking a much broader view of the design freedom available to the designer of such products and hence finding the design too similar to the cited prior art. Since in Europe essentially the same test is applied for infringement as for validity, the CFI decision will affect both. Will they find the design valid (and consequently of narrow scope) or invalid (but potentially of broad scope)? Watch this space.