The Voivodeship Administrative Court in Warsaw in its judgment of 20 September 2010 case file VI SA/Wa 852/10 held that an industrial design has individual character if the overall impression it produces on the informed user differs from the overall impression caused by the design that was publicly available before the date according to which the priority is claimed. The scope of creative freedom in developing the design should be taken into account in assessing individual character of the industrial design. The VAC agreed with the Polish Patent Office that the opposed designs are determined by the function to which they were intended. The condition for invalidation of a design is not an infringement of an exclusive right but the statement that the use of industrial design violates personal or property rights of third parties, and the applicant has based its opposition on such arguments. The assessment whether the condition occurs in the light of that provision is therefore within the exclusive jurisdiction of the Polish Patent Office that should decide such case in the litigation procedure.

This judgment concerned the industrial design “Ubranko ochronne dla zwierząt” (in English: animal protective gown), Rp-13123. See also “Polish regulations on industrial designs” and “Polish case law on industrial designs“.

Categories: Art. 102 IPL | Art. 103 IPL | Art. 104 IPL | Art. 117 IPL | individual character of a design | industrial designs | informed user | invalidation of a right in registration | Polish Act on Industrial Property Law | Voivodeship Administrative Court.