Designs – That’s The Way the Cookie Crumbles
This case of Biscuits Poult SAS v OHIM; Banketbakkerij Merba BV relates to a Community design intended to be applied to cookies.
Originally, Banketbakkerij had applied to OHIM (the EU Trade Mark Office) for a declaration of invalidity on the grounds that the design was not new, lacked individual character, and that its appearance was dictated by technical function. The Cancellation Division dismissed this application, only for the Board of Appeal (BoA) to overturn this decision, and find that the design was invalid as it lacked individual character.
Following a further appeal, the General Court (GC) has now upheld the decision of the BoA, and agreed with the BoA’s assessment that as the chocolate filling was only visible when the cookie was broken, this characteristic was not to be taken into account when assessing the individual character of the design. In making this decision, the GC found that a cookie could not be considered to be a complex product under Article 4(2) of the Community Design Regulation.
Thus, the product’s characteristics such as its irregular outer surface, golden colour and round shape were common to designs in the sector, and differences such as specific dimensions were not liable to produce a different overall impression on the informed user. The design could not, therefore, be regarded as having individual character.