November 30, 2020
Dvectis CZ s. r. o. was the owner of the Community design shown below, which was registered in Class 24-04 for “Back braces, support pillows; cushions for pelvis support; orthopaedic supports” on 15 June 2016:
On 3 October 2016, Yado s. r. o. applied for a declaration of invalidity of the design on the grounds that it lacked novelty and individual character (under Articles 25(1) and 4 to 6 of the Community Design Regulation (6/2002/EC)) when compared with its own Community design (shown below) registered in Class 24-04 for “support pillows”, which was registered on 17 December 2013:
The Invalidity Division agreed with Yado and declared the design invalid. Dvectis appealed and the Third Board of Appeal of EUIPO dismissed the appeal.
Dvectis appealed to the General Court, alleging in particular that the BoA had erred when assessing the individual character of its design.
Dvectis argued that the BoA should have found that the category of products to which its design related was “inflatable healthy sitting pillows and cushions”, rather than “support pillows and cushions”.
The GC said that, whilst, the design’s indication of “cushions for pelvic support” was likely to cover “healthy sitting pillows and cushions”, that did not automatically apply to the design’s more general indication of “support pillows”, which could cover pillows or cushions capable of being used to support different parts of the body. Moreover, the representation of the design did not identify a particular category of pillows or of cushions with a particular purpose. Accordingly, it could not be deduced, either from the design’s indications or from its representation, that the relating products belonged to the specific category of “inflatable healthy sitting pillows and cushions”.
Therefore, the BoA had been fully entitled to find that the products in question belonged to a wider category than that alleged by Dvectis.
Dvectis also argued that the BoA had erred in its assessment of the informed user, but the GC disagreed, finding that such person may be the end user of the products, for whatever purpose (be it medical, ergonomic, anatomical or personal comfort), and at the same time, a professional in the paramedical or ergonomic field who, without being a designer or a technical expert, knows the various products in the wider category of “support pillows and cushions” and can illustrate their use, their characteristics and efficacy. This informed user would show a relatively high level of attention with regard to such products.
Accordingly, the GC said that the BoA had been correct to find that the informed user was a user of “support pillows and cushions”, who had a certain knowledge of their various features and was aware of the various designs that existed in that sector.
Dvectis also argued that the BoA had wrongly assessed the degree of freedom of the designer. It said that, given that the products concerned were, in its view, “inflatable healthy sitting pillows and cushions”, the degree of freedom of the designer was limited, unlike that of the designer of “support pillows and cushions”.
The GC said that, given that the BoA had been correct in its assessment of the category of products, it had been correct to find that the designer of “support cushions and pillows” was less restricted than the designer of “inflatable healthy sitting pillows and cushions”, who would have to incorporate certain characteristics, such as an ergonomic shape, a particular thickness and a way of preventing air, or other filling material, from escaping. The designer of “support pillows and cushions”, on the other hand, could choose from a wide variety of shapes, materials, contours and decorations.
As for overall impression, the GC said that Dvectis’s design was essentially a rectangular shape with rounded corners, a slightly perceptible convexity on three sides and a strongly marked concavity on the fourth side, as well as two vertical lines that divided it into two symmetrical lateral parts, separated by a central part. Therefore, it was clear that it shared certain characteristics with Yado’s design. Further, the GC said, any perceivable differences were minimal and a comparison of the designs side by side showed that the marginally more curved shape and the vertical lines in Dvectis’s design were not significantly different from the shape and the vertical stitching of Yado’s design.
Therefore, the GC said, the overall impression of the designs was dominated by the main features of Dvectis’s design and the synergy of those fundamental characteristics conveyed to the informed user, to whom particular vigilance and sensibility had to be attributed, a similar overall impression. Therefore, Dvectis’s design lacked individual character.
Accordingly, the GC upheld the BoA’s decision and dismissed the appeal. (Case T-818/19 Dvectis CZ sro v EUIPO EU:T:2020:486 (15 October 2020) — to read the judgment in full, click here).