Judgment has recently been handed down in the "Biscuit" appeal to the EU General Court. Biscuits Poult SAS appealed the decision of the Office for Harmonisation in the Internal Market (OHIM) that its registered Community design depicting a cookie (seen below) was not new and lacked individual character.
On 25 March 2009, Biscuits Poult SAS filed an application for registration of a Community design as represented above. In February 2010, Banketbakkerij Merba BV had applied to OHIM for a declaration of invalidity on the grounds that the Biscuits Poult design was not new, had no individual character and its appearance was dictated by its technical function.
The case went through several rounds of decisions at OHIM. The General Court on appeal ruled that the layer of chocolate inside the biscuit should not be taken into account as it became visible only when the cookie was broken. Thus it did not relate to the product's appearance and should not be taken into account when assessing its individual character. The product was not a complex product and the smoother surface and prominent presence of chocolate chips did not confer individual character. Those differences were not liable to produce a different overall impression on an informed user.
Biscuits Poult SAS (who it seems were trying to obtain a registration for something that would otherwise appear obvious) were ordered to bear their own expenses and pay those incurred by OHIM and Banketbakkerij Merba BV - crumbs!!!
For guidance on how best to protect your intellectual property, contact Tony Catterall, Head of Intellectual Property, on 01254 297900 or via email at firstname.lastname@example.org