Registered design invalidity for drink cans (EU General Court)

The EU General Court has dismissed an appeal in successful invalidity proceedings relating to a design registration for three sizes of drink cans, based on the prior disclosure to the public of similar can designs.

The court held that the EUIPO Board of Appeal had been right to refuse to protect the design as a group of cans (which would have constituted a differentiating factor). The board was not bound by the fact that EUIPO had registered the design as a group, since EUIPO did not substantively examine design applications, and registration of items as a group was reserved for designs where the separate items performed a common function, such as a chess set.

The court also held that the fact that the board had refused to take the accompanying description into account (because it was in English, which was not the language of the application itself) was not a valid ground of appeal, since as a matter of principle a description could not influence the scope of protection.

Arguments as to differences in the ratio of width to height, and the alleged “sleek” character of the cans in the design, were not relevant either, as that factor did not contribute to the overall impression given by the design. The informed user would not attach importance to the ratio, since they would know the usual sizes of cans used for beverages.

Practical Law 15.6.17