Form, Function and the
Freedom of Designers
Martin Schlötelburg, BoA, OHIM
Alicante, 2 June 2015
Eiffel Tour (1889)
Chrysler Airflow (1935)
Giraffe (8 Mill. B.C.)
crown cork US patent
paper clip US patent
RCD 34269-0001
RCD 996046-0001
RCD 232996-0001
RCD 579032-0001
DESIGN
● Appearance of a product
● Novelty
● Individual character
PATENT
●Technical invention
●Novelty
●Inventive step
Community Design Regulation (CDR) - Preamble
(10) …. a design does not have to have an aesthetic quality….
(31) … the Regulation does not preclude the application
to designs of … patents and utility models ….
Article 8(1) CDR
A Community design shall not subsist in features of appearance
of a product which are solely dictated by its technical function.
Technical function ?
Technical Function:
Simplify attachment of a dispensing module to
a gun manifold of a liquid dispensing system.
Solely dictated?
“The technical constraints did restrict the
designer’s degree of freedom; there was
still sufficient room for creativity in the
design of these functional elements,
however. The specific design of the
features mentioned was not solely
dictated by the technical function.”
RCD 1213904-0001
(R2081/2011-3, 17/09/2013)
The placement of those components is not dictated
by functional requirements. […] Since the
positioning and shape of the components of an
internal combustion engine are not limited by any
particular technical necessity, the designer’s degree
of creativity with respect to such internal
combustion engines is not limited.
RCD 163290-0001
(T10/08, 09/09/2011)
The designer’s degree of freedom is established by,
inter alia, the constraints of the features imposed by
the technical function of the product.
(T22/13, 21/05/2015)
RCD 579032-0001
solely dictated by technical function => no freedom for the designer
freedom for the designer => not solely dictated by technical function
Internal combustion engines exist in a wide variety
of shapes [...] which shows the possibility of
variations and differences in the design of internal
combustion engines. It follows that […] the
designer’s degree of creativity with respect to such
internal combustion engines is not limited.
(T10/08, 09/09/2011)
RCD 163290-0001
variety of shapes => freedom for the designer => not solely dictated by technical
function
RCD 150917-0004
“… alternative shapes are plausible (such
as making a couple of the faces of the
basic shape square-shaped). Alternatively,
one could reasonably imagine a squareshaped cube being used. Moreover, the
height, width and depth ratios are not fully
functional but can vary, as well as the
surface aspect, for aesthetic effect. This
means that the shape of the contested
RCD is not ‘solely dictated by its technical
function.”
(R998/2013-3, 15/02/2015)
What about trademarks?
No trademarks for signs which consist exclusively of “the shape which gives
substantial value to the goods”
(Art. 7(1)(e)(ii) CTMR)
No trademarks for “signs which only incorporate a technical solution”.
(C-337/12, 06/03/2014)
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