[Editor's note] Like most countries and regions in the world, The rulings of the Court of Justice of the European Union have important guiding significance and predictive value for understanding the legal norms of the European Union. Esabaril (ELZABURU) At the beginning of each year, typical cases of the Court of Justice of the European Union in the previous year are summarized and published, And a brief review of each case, In order to help customers and partners to understand the EU intellectual property norms. Given the importance of Chinese customers and partners, We try to publish the Chinese version of typical cases on a weekly basis, It is convenient for Chinese partners to learn the latest information in a timely manner.

　　 [background]

　　Natural person Serafín and José Enrique Sue Smash2005 A short skirt sold by the company is not (European Union) Community registered design (Registration number: 001720145-0001, As shown in Figure 1) Same overall appearance, Infringement of its design rights. The court of first instance rejected the defendant's counterclaim for invalidation of the disputed design, The reason was that the design of the short skirt was quoted (As shown in Figure 2) It's not reversible, Neither can the design in question be described in its brief (description) Described in, You can combine different parts freely. The defendants then appealed to the EU Court of Trade Marks and Designs in Alicante. Figure 1: Registered design drawing II in dispute: Reference the prior open design

　　 [conclusion]

　　To settle the dispute in this case, The appeals court first stated the importance of distinguishing between design and actual product. For that matter, The court noted that the object of exclusive rights is not the actual product to which the design applies but the registered design itself. On this basis, The court comprehensively evaluates the elements of appearance comparison for determining the existence of infringement, And determine the true scope of protection of the registered design.

　　The court held that, Determine the uniqueness of a design (individual character) Constituent elements of, The most important requirement is a graphical representation of the registered design (graphicrepresentation) And the classification of products applicable to the design. The court also noted, The purpose of clarifying product categorization is "Ensure that a third party can retrieve the registered design database" , And the purpose of graphical representation is to "Ensure that third parties can accurately identify all details of the design" . The court emphasized that the protection of design rights can only include "Represented by its graphical representation" Product appearance, Without being affected by applicable product classification and summary description.

　　Through the above analysis, The court held that design briefs were not protected, Therefore, The court overruled the grounds of the first instance, The immediate disclosure design is different from the disputed community design, The reason is that there is no evidence that the preceding design is positive or negative, Nor is it as stated in its brief description of the controversial Community Design, You can combine different parts freely.

　　Therefore, Appellate decision: "The contrast should be made, Graphic representations of different registered designs that reveal the nature of designs; or, Register designs and graphical representations of designs applied to specific products" . Based on this, The Court of Appeal accepted the defendant's grounds of appeal and the corresponding application for counterclaim.

　　 [comment]

　　One of the main points of the decision in this case, Whether or not you can restrict design content by submitting brief instructions when applying, The scope of protection of a registered design shall be limited only to its appearance, specifically, That is, the graphical representation provided at registration. but, This explanation may be risky, Because you have to ask questions, If the brief description contains an aesthetic description of the appearance, For example, the submitted graphic representation of the design is black and white, The description describes the specific colors of the design, This is clearly not about providing technical or functional descriptions, So in this case, Could the Alicante EU Court of Trade Marks and Designs have reached the same conclusion? Therefore, There are cases where brief instructions play a key role in determining the scope of design protection.

　　compile: Liu Dan, Esabarry Legal Counsel　　source: Esabaril (ELZABURU) Intellectual property rights