Wyd. specjalne/2011 - Regionalny Ośrodek Informacji Patentowej ...

According to the wording of Article 246 IPL anopposition is a common legal means serving anyperson, so it does not require from the opposingparty a justified legal interest in the case.A definition of an industrial design comprisedin Article 102(1) IPL states that, “any newand having individual character appearanceof the whole or a part of a product resulting fromthe features of, in particular, the lines, colours,shape, texture or materials of the product and itsornamentation, shall constitute an industrialdesign.”In the light of the said definition, the subjectof registrations of industrial designs are appearancesof their products.The essential features of the industrialdesign in question indicated in the descriptionattached to its application documents comprisedflowers of the blow-ball flying from the rightto the left side placed on a ceramic plate,and three butterflies of the species Painted-Tortoiseshell butterfly in the specific positions.Below the butterflies there is a floral motif resemblinga branch of a fennel. The branch is placedat the right side of the plate, and appropriatelydirected butterflies are placed above it startingfrom the bottom upwards, from the smallest oneto the largest.The Adjudicative Board of the Patent Office, afterinvestigating the evidence materials, decidedthat the industrial design in question did notmeet the requirement of an individual characterin the understanding of the cited Article 104 IPL,as the overall impression it made on an informeduser did not differ from the overall impressionmade on such user by the design which hadbeen made available before the date accordingto which its priority was determined.The juxtaposed evidence materials proved that,before the date according to which the priorityof the industrial design in question wasdetermined, ceramic plates “Almeria” had beenmade available to public. Besides, even thoughthe colour of the decoration has not been indicatedamong the essential features of the designin question, the presented catalogue showsa plate in the same colours as one in the pictureattached to the application of the design in question.The appearance features of the “Almeria”plates decoration similar to other essential featuresof the said design also comprise blow-ballflowers flying from the right side to the left sideof the plate, on the background of which thereare (two) butterflies, similarly situated. Belowthe butterflies, there is a floral motif resemblinga branch of fennel. The said branch is placedon the right hand side of the plate and above itthere are butterflies in the similar positions. Thecolour of the background, the type and the sizeof the floral motif fruit and their positioning arepractically identical.The above named features convergentto the ones of the design in question combineto form the same system of several butterflieswith a floral motif in the shape of stylised contourof a stem resembling a branch of fenneland a background in the form of unevenly arrangedfruit with plumes. Therefore, it should beconsidered, that the overall picture of the platedecides that the impression the design makeson an informed user does not differ fromthe overall impression made on the same userby the “Almeria” plates, in particular by the plate“Inserto Almeria Zefir 20x25”.The assessment of the overall impression,in the sense of Article 104(2) IPL has beencarried out taking into account the freedomof creation while inventing the design in question.The said freedom is practically unlimited,as a plate decoration does not have to meet anyfunctional demands. Any picture could be placedon a plate surface. Wide range of creation freedomincreased the demands as to the individualcharacter of the design in question.The assessment of the individual characterof the design in question has been carriedout from the perspective of an informed userconsidering that, in the case of a ceramic platedestined to be placed on a bathroom wall, itis a person professionally buying such plates ora person researching the market in order to purchasethem. Such user does not care aboutthe name of particular decorative elements butabout their appearance. Therefore, the fact thatthere are butterflies in the design in question,while in the other materials in question there aremoths, and further, that in the design in questionthere is a fennel branch motif while the otherdesign presented a blow-ball, cannot as suchprove the existence of an individual characterof the questioned solution. The decisive factoris the appearance of the whole pictureand the impression it makes.An informed user of plates does not haveto know that the butterflies are Painted-Tortoiseshellbutterflies and can identify them as moths,in the presence of other convergent elements.Such user can also confuse a branchof fennel with a blow-ball, particularly if there areelements like fruit of blow-ball situated aroundthis fennel motif.The use of the design in question also infringedauthor’s economic rights of the opposing companyin the understanding of Article 117(2) IPL,as was decided by the binding ruling of the Courtof Appeal.Another example concerns the case in whichthe subject of an industrial design is invisibleto the final user during its normal use.A company from Oświęcim approached the PatentOffice of the Republic of Poland acting in litigationprocedure with a request for invalidationof the right in registration for the industrial design“Isolation plate” (no. Rp-6182). The requestingparty derived its legal interest from the factthat he was a producer of foamed polystyreneand foamed polystyrene products, includingfoamed polystyrene having features comprisedby the right in registration in question, thusthe right in question causes the restrictionof his guaranteed freedom of business activity.Besides, the owner of the right at stake calledthe requesting party to desist from infringingthe right in registration for the design in question,remove the effects of the infringement, paythe damages and place the appropriate statementin the press. Presently, before the DistrictCourt in Cracow the proceedings are held betweenthe parties of the abovementioned case,initiated by the owner of the right and concerningthe infringement of the said right.In the grounds of the request and at the courttrial the requesting party raised that the designin question could not constitute an industrial designin the understanding of Article 102 IPL, as itdid not have the definite appearance being a resultof incidental, unrepeated and unpredictablearrangements of coloured pellets caused by theirmechanical mixing in the production process,so it is not suitable to be reproduced repeatedlyin a handicraft or industrial manner.Furthermore, the requesting party raised the lackof novelty and individual character of the designin question, which, in his opinion, followed bothfrom the article published by the owner in hisquarterly and from the Norma Branżowa (TradeStandard) from 1991 no. BN-91/6363-02 named“Tworzywa sztuczne. Płyty styropianowe”(“Plastics. Foamed Polystyrene Plates”), whichrecommends staining foamed polystyrene pelletsfor fire retardant foamed polystyrene platesrose to red, as well as from the introductionto the market as an effect of incidental intrusionsin the plates manufactured by the requestingparty’s plants (abroad), and also from manypublications including foreign utility models.76 • KWARTALNIK URZĘDU PATENTOWEGO RP Wydanie specjalne