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2008 06 27 Food & Drinks Seminar
- 1. Scope of protection and limitations in packaging design freedom 27 June 2008 Wouter Pors, Partner, Den Hague Jean-Christophe Troussel, Partner, Brussels
Notes de l'éditeur
- DISTINCTIVE = capable of distinguishing the goods of one undertaking from those of other undertakings.
- Grounds of refusal must be interpreted in the light of the public interest underlying each of them: see Windsurfing Chiemsee, paragraphs 25-27 « to prevent trade mark protection from granting its proprietor a monopoly on technical solutions or functional characteristics of a product which a user is likely to seek in the products of competitors » ECJ, Philips/Remington, paragraphs 77-78
- See Philips par. 75 et Linde par. 44 PATENT TGI Paris 23 May 2007, Viennetta Decision The shape of Viennetta ice cream has a technical function since it directly derives from the patented process
- Signs which exclusively consist of the shape of the product means that the essential functional features of that shape are attributable only to the technical result Interpretation and application of the concept « functional features »? Suggestion: all features and characteristics performing a technical function and that user is likely to seek in products of competitors « essential »: assessment on a case-by-case basis, question of facts
- « Even admitting that a cereal biscuit with right angled corners is more prone to burning during baking process than cereal with rounded corners or is less fragile, these simply seem to correspond to some practical advantage but not technical reasons as such » Signs where a technical result is obtained through the shape Technical nature of the result Nebulous Not defined by the patentable character Shape must be crucial to achieve the result Narrow interpretation of the exception Only covers shape whose modification would change the technical result itself and not those which are merely practical Illustration see Weetabix and Toblerone cases
- “ the board concurs with the contested decision that the Lego brick is wholly functional since there is nothing arbitrary nor ornamental present in it; consequently the board, with regard to the proprietor’s Lego brick, can apply the following words of the Remington/Philips judgment, namely that the essential functional characteristics of the shape are attributable solely to the technical result »