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Archive for: informed user

Industrial design law, case VI SA/Wa 504/10

August 24th, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 11 May 2010 case file VI SA/Wa 504/10 held that the scope of creative freedom is determined by the functional features of the object and the previous designs. In case of designs that must meet particular functional requirements, the scope of creative freedom is smaller than in the case of designs, which have more of the aesthetic features. Where the scope of creative freedom is broader, the differences between designs should be more noticeable than in the narrow scope of that freedom. The informed user must have information on the object, that is sufficient to assess the scope for creative freedom and be able to see even relatively small differences, that are important in the case of designs with little creative freedom.

Wzór Przemysłowy Rp-11748

This judgment concerned the industrial design “Podstawka reklamowa Star base” (in English: advertising stand Star base) Rp-11748.

Industrial design case, VIII SA/Wa 332/09

February 11th, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in a judgment of 15 December 2009, case file VIII SA/Wa 332/09, ruled that he “informed user” is a person who continues to use a product and therefore has some knowledge about its design. It is not a professional. This may be a very attentive consumer who knows what is he or she looking for and who draws attention to all visible elements of the product. The infromed user who uses cartridges for a roller blind, is certainly not an average user or an average purchaser of such product. While assessing the individual character of a cartridge for a roller blind, the scope of creative freedom should be assesed, taking into account the nature of the product and its utilitarian functions, and then, by establishing the characteristics of an “informed user”, the evaluation of a products and the differences should be performed through such prizm, bearing in mind that the “informed user” is one who knows that there are different types of cartridges and who examine them carefully. This judgment is not yet final. The parties may file a cassation complaint to the Supreme Administrative Court.

This judgment concerned the industrial design “Kaseta do rolet” (in English: cartridge for a roller blind), Rp-8019.

Wzór Przemysłowy Rp-8019

See also my post entitled “Polish case law on industrial designs“.

Industrial design, case II GSK 238/09

January 27th, 2010, Tomasz Rychlicki

The Supreme Administrative Court in a judgment of 16 December 2009, case file II GSK 238/09, ruled that the essential features of the industrial design, are these characteristics that determine the overall impression that the design produces on the informed user. These are features of the shape/appearance which serve as a basis for identifying, distinguishing the design from other, already known designs. The forms of the industrial design differ (otherwise there would be no forms). But these differences include irrelevant features, i.e. those which do not affect the overall impression. The essential features, that decide on the overall impression are common for all forms of an industrial design. Forms of industrial design that are put in one application which are also having the essential features common, differ from each other only by features that are irrelevant. These forms are identical as defined in article 103(1) – second sentence – of the IPL.

Designs shall also be deemed to be identical with those made available to the public if their features differ only in immaterial details.

This means that if some of the forms of the industrial design had already been made public, and lost its novelty, other forms, differing from them only by insignificant details, do not have the novelty characteristic, because they are considered by the law as identical, which means, they are devoid of the individual characteristic.

This judgment was issued on the basis of the cassation complaint brought from the judgment of the Voivodeship Administrative Court (VAC) in Warsaw, of 11 December 2008, case file VI SA/Wa 1827/08. The judgment of the VAC was reported in my post entitled “Industrial design case VI SA/Wa 1827/08“.

This judgment concerned the industrial design “Zadaszenie drzwi” (in English: door canopy), Rp-9201.

Wzór Przemysłowy Rp-9201

See also my post entitled “Polish case law on industrial designs“.

Industrial design case, II CKS 302/07

January 8th, 2010, Tomasz Rychlicki

I have to write about another important judgment I forgot to report two years ago. This time it is the judgment of the Supreme Court – Civil Chamber of 23 October 2007, case file II CKS 302/07, published in the Jurisprudence of the Polish Courts (in Polish: Orzecznictwo Sądów Polskich) of 2009, No 6, p. 451, together with the gloss by Maria Poźniak-Niedzielska at p. 455.

Some of my P.T. readres may be confused with regard to different courts deciding the same subject matter – in this case – designs and I need to explain that the administrative proceedings in designs’ cases, in general, concerns all decisions made or orders issued by the Patent Office of the Republic of Poland (the PPO takes decisions on granting, refusal to grant of a right in registration for an industrial design etc.) which are liable to complaint lodged to the Voivodeship Administrative Court (VAC) in Warsaw. Judgments made by the VAC may be a subject of a cassation complaint filed before the Supreme Administrative Court (SAC). However, cases with regard to infringement of a right in registration granted for an industrial design are decided in civil law proceedings. That was the reason the aforementioned case was decided at the last stage by the Supreme Court. See my post entitled “Administrative, civil and criminal proceedings in trade mark cases in Poland“.

The Supreme Court had to give an interpretion of provisions of article 104 and 105 of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej) of 30 June 2000, published in Journal of Laws (Dziennik Ustaw) of 2001 No 49, item 508, consolidated text on 13 June 2003, Journal of Laws (Dziennik Ustaw) No 119, item 1117, with later amendments.

Article 104
1. An industrial design shall be considered to have individual character, if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available before the date according to which priority is determined.

2. In assessing individual character, the degree of freedom of the designer in developing the design shall be taken into consideration.

Article 105
1. For an industrial design a right in registration may be granted.

2. The right in registration shall confer the exclusive right to exploit the industrial design for profit or for professional purposes throughout the territory of the Republic of Poland.

3. The holder shall enjoy the right to prevent any third party from making, offering, putting on the market, importing, exporting or using a product in which the design is incorporated or to which it is applied, or stocking such a product for those purposes.

4. The right conferred by the registration of an industrial design shall include any design which does not produce on the informed user a different overall impression. Article 104(2) shall apply accordingly.

5. The right conferred by the registration of an industrial design shall be limited to the kind of products, in respect of which the protection has been applied for.

6. Subject to Article 111, the term of a right in registration shall be 25 years counted from the date of filing of an industrial design application with the Patent Office, the said term being divided into 5-year periods.

Wzór Przemysłowy 6751

The SC held that the examination whether there was any infringement of the registered industrial design requires a comprehensive comparison of designs from the perspective of the person using (on a permanent basis) these items, which belong to specific group of goods, a person being oriented/informed in designs that originate from the creative freedom and to examine/assess whether the overall impression produced by the questioned design on such a person differs or not from the general impression caused by the registered design.

Legal commentators stressed the fact that the concept of “informed user” (oriented) was implemented in the IPL following the adjustment of Polish law to protection standards that exist within the EU law. The person being an informed user is a newcomer in the pantheon of fictional characters of industrial property rights, functioning as a certain pattern. In article 26(1) of the IPL already exists such character called “a person skilled in the art”.

1. An invention shall be considered as involving an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the art.

The Polish commentators also noted and commented on foregin judgments such as Procter & Gamble Company v Reckitt Benckiser (UK) Ltd., [2007] EWCA Civ 936 and Woodhouse UK Plc v Architectural Lighting. Systems t/a Aquila Design and Urbis Lighting Ltd. [2005] ECPCC (Designs) 25, [2006] RPC 1 and OHIM Invalidity Division’s decisions such as Eredu S Coop v Arrmet SRL, ICD 24, 27 April 2004 and Honda Motor Company Ltd v Kwang Yang Motor Company Ltd, ICD 1006, 30 August 2006.

See also my post entitled “Polish case law on industrial designs“.

Industrial design law, case VI SA/Wa 518/09

January 7th, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 21 July 2009 case file VI SA/Wa 518/09 ruled that where the scope of creative freedom is greater, the assessment of the originality of the design may justify the thesis that the differences should have easily discernible character. By contrast, in the case of a design with a small range of creative freedom, even small differences will not remain unnoticed by the informed user. The design must be different from designs already known and cannot create the impression that a product of such a form of a design has already been seen. It is necessary to examine the compared designs, including the overall impression which is triggered by the design in terms of the so-called “informed user”. The term “informed user” indicates the person who uses the product/design on a permanent basis, so it is not, nor is the average consumer, or the average expert.

Wzór przemysłowy 11751

This judgment interpreted inter alia provisions of articles 103 and 104 of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej) of 30 June 2000, published in Journal of Laws (Dziennik Ustaw) of 2001 No 49, item 508, consolidated text on 13 June 2003, Journal of Laws (Dziennik Ustaw) No 119, item 1117, with later amendments.

1. An industrial design shall be considered new if, before the date according to which priority to obtain a right in registration is determined and subject to paragraph (2), no identical design has been made available to the public, i.e. used, exhibited or otherwise disclosed. Designs shall also be deemed to be identical with those made available to the public if their features differ only in immaterial details.

2. The designs shall not be deemed to have been made available to the public within the meaning of paragraph (1), if it could not have become known to the circles specialised in the sector, to which the design belongs.

3. The provision of paragraph (1) shall not prevent a right in registration to be granted, if a design:
(i) has been disclosed to a third party under explicit or implicit conditions of confidentiality,
(ii) has been disclosed during 12-month period preceding the date according to which priority to obtain a right in registration is determined, by the designer, his successor in title or a third person with the right holder’s consent, as well as if the disclosure has occurred as a consequence of an abuse in relation to the designer or his successor in title.

Article 104
1. An industrial design shall be considered to have individual character, if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available before the date according to which priority is determined.

2. In assessing individual character, the degree of freedom of the designer in developing the design shall be taken into consideration.