PepsiCo Take Registered Community Design Dispute to the ECJ

In Summer 2010, the first appeal decision on a Registered Community Design (‘RCD’) was given by the European General Court (EGC).  We can now report that, having lost at the EGC, PepsiCo have taken this matter to Europe’s highest court – the European Court of Justice.  For details of the EGC decision, see our article at http://www.vennershipley.co.uk/show-news-id-246.html. The fact that the EGC decision was a reversal of a reversal indicates how borderline the issues are.  This appeal is currently pending at the European Court of Justice (ECJ) as C-281/10P.

PepsiCo’s grounds of appeal are that the EGC violated Article 25(1)(d) of Council Regulation (EC) No.  6/2002 (which defines the grounds of invalidity of an RCD) by:

a) failing to take into account the constraints on the designer in developing the contested design;

b) wrongly interpreting the notion of the informed user and his attention to detail;

c) applying erroneous criteria in its assessment of ‘different overall impression’;

d) carrying out a comparison between the designs based on actual products in the file rather than on the designs as registered; and

e) basing the comparison on distorted facts.

It seems that some of these grounds may have more merit than others.  Also, regarding point a), the EGC did consider in some detail the ‘degree of freedom’ of the designer in producing the design, although PepsiCo clearly feel that they might win on this point.

It will be interesting to see the ECJ’s views on the grounds raised by PepsiCo and useful also to have some high-level guidance for determining the validity of RCDs.  We are looking forward to seeing whether the ECJ upholds the EGC’s decision, or whether this case ends up with yet another reversal.

We shall keep you posted of developments.

pending at the European Court of Justice (ECJ) as C-281/10P.:

2: ECJ reference

Council Regulation (EC) No.  6/2002

3: Council Regulation (EC) No.  6/2002

Alex Brown 29 Nov 2010

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