European Court of Justice confirms the presumption of individual character for unregistered Community Design

On 19 June 2014 the European Court of Justice (ECJ) had to deal with questions surrounding the individual character of an unregistered Community Design and the burden of proof for the individual character In the framework of the request for a preliminary ruling origination from Ireland (Case ref.: C-345/13).

In the first question put to the ECJ, the referring court wanted to know whether for assessing the individual character the overall impression of the unregistered design differs from the overall impression of an informed user caused by a) a single earlier design which had been made publicly available to the public before or b) the combination of known characteristics of earlier designs.

In addition the ECJ had to deal in the second question put to it with the question whether the burden of proof for the individual character rests with the owner of the unregistered design.

With respect to the individual character the ECJ has made it clear that the comparison has to be made with older designs as such and not with a combination of characteristics from several earlier designs. Individual character may therefore still be given where the characteristics of the design could be found in several different earlier designs. On the second question the ECJ decided that the burden of proof for the individual character was not on the owner of the unregistered design. The individual character was presumed. The owner only has to indicate due to which elements the design possessed individual character.