After recent case law has increasingly restricted protection of designs with a technical function, a judgment of the ECJ of 24.3.2021 (case number T-515/19) now gives some hope.
In 2010, the Danish company Lego A/S had applied for the following EU design:
In 2016, Delta Sport Handelskontor GmbH filed an application for declaration of invalidity against this design on the grounds that all features of the design were solely dictated by their technical function. The EUIPO Appeals Division shared this view and declared the design invalid.
The ECJ, however, annulled this decision. First, the EUIPO Board of Appeal had not examined a specific exception in favor of Lego, according to which design protection is possible for a product which must necessarily be reproduced in this exact form and dimensions in order to be mechanically connected to or placed in, around or against another product so that either product may perform its function. Also, and maybe more importantly, a design may only be declared invalid if all of its features are solely dictated by their technical function. Here, however, the Board of Appeal did not sufficiently take into account the smooth surface of the module or the question of whether the same had any technical function.
The ruling certainly does not represent a complete turnaround in the current handling of technical designs. At least, however, it forces the responsible authorities to take a close look at all the features of a design and to check them for their technical function. Thus, a small glimmer of hope for technical designs.
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