Kastenholz qwatchme A/S (Case R 1086/2009-3) Th. Margellos Chairperson and Rapporteur D.T. Keeling Member ) and C. Rusconi Member Registrar C. Bartos November 2, 2010 Community designs Copyright EU law Individual character Novelty Prior rights Validity Registered Community Design—whether invalid for lack of novelty and individual character—whether improper use of a prior copyright work—Held, dismissing the appeal—the design has individual character—it is not a reproduction of the prior copyright work—ideas are not protectable. Qwatchme A/S (“the RCD proprietor”) is the holder of Registered Community Design for “watch-dials”. Erich Kastenholz (“the invalidity applicant”) filed an application for a declaration of invalidity against the contested RCD ...
...not fulfil the requirements of arts 4 and 5 of Council Regulation 6/2002 of 12 December 2001 on Community Designs (“CDR”) [2002] OJ L3/1 and (b) that it constituted an improper use of a clock-face that was protected ...
...art.25(1)(f) CDRHeld that the appeal is dismissed. Individual character: The informed user is familiar with the design of timepieces. He is aware that the degree of freedom of a designer concerned with that type of (analog) watch ...
...the overall impression produced on the informed user by the RCD differs from the overall impressions produced by the prior designs. The prior designs disclosed comprise graded colouring (shading) of their disks which produce a large range of colours when the disks overlap at ...
...of three different colours (shades). The differentiating features have a significant impact on the overall impression produced by the two designs and lead to a different perception by the informed user. The contested RCD, therefore, possesses individual character. Novelty: The two designs are not identical. It is clear that novelty and individual character, although presented as separate requirements in arts 4–6 CDR , overlap to some extent. Obviously, if two designs produce a different overall impression on the informed user, they cannot be identical for the purposes of art.5 CDR 352 Copyright: In view of the differences between the design of the RCD and the prior designs, it is found that the RCD does not make use of the work of Mr Heimbach protected under German copyright ...
...mathematical concepts as such. This principle has been confirmed by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) of the World Trade Organization (WTO) as well as the WIPO Copyright Treaty to which Germany is a contracting ...
...is not protectable under copyright. Qwatchme A/S (“the RCD proprietor”) is the holder of Registered Community Design No 602636-0003 (“the contested RCD”), which has a filing date of September 28, 2006. The contested RCD is registered for “watch-dials”. It is represented below. The description of the representation states that “All the representation-views show a ...
...not fulfil the requirements of arts 4 and 5 of Council Regulation 6/2002 of 12 December 2001 on Community Designs (“CDR”) [2002] OJ L3/1 and that it constituted an improper use of a clock-face that was protected under ...
...pursuant to art.25(1)(f) CDR The invalidity applicant claimed that the RCD was not new since an identical design of a clock-face with the technique of overlapping coloured foils (“Farbfolge 11”) for “12 hours in a cadence of ...
...the artist Paul Heimbach in exhibitions and catalogues between 2000–2005. The invalidity applicant claimed that from the clock-face design “Farbfolge 11”, the artist Paul Heimbach developed the clock-face “Farbzeiger 11” and that in 2001, 100 watches with the ...
...2003, the “Farbfolge” clock-face was exhibited in Düsseldorf, Germany by Buchgalerie Mergemeier. In the invalidity applicant’s view, the design of the clock-face was protected under German copyright law because it featured a clock-face that changed continuously with ...
...was ordered to bear the costs. The contested decision is summarised as follows: Novelty The contested RCD and the prior designs are timepieces that show time by means of coloured disks. However, the RCD on the one hand and the two prior designs on the other, are different. The disks in the invalidity applicant’s designs are coloured with a clockwise increasing intensity, whereas the two half disks of the RCD are uniformly coloured (shaded). In ...
...disks are mounted, whereas the RCD does not comprise a third disk. Due to the differences explained above the prior designs cannot be moved in any of the configurations shown in the views of the RCD, i.e. none of the configurations shown in the respective views of the RCD is anticipated by any of the prior designs. Therefore, none of the prior designs forms an obstacle to the novelty of the RCD. Individual character The informed user is familiar with the design of timepieces. He is aware that the degree of freedom of a designer concerned with that type of (analogue) watch ...
...the overall impression produced on the informed user by the RCD differs from the overall impressions produced by the prior designs. The prior designs disclosed comprise graded colouring (shading) of their disks which produce a large range of colours when the disks overlap at ...
...various angles. In contrast, the RCD only gives rise to a maximum of three different colours (shades). Therefore, the prior designs raised do not form any obstacle to the individual character of the RCD. Copyright In view of the differences between the design of the RCD and the prior designs, it is found that the RCD does not make use of the work of Mr Heimbach protected under German copyright ...
...the contested RCD invalid. His arguments may be summarised as follows: Novelty The fact that the disks in the prior designs are coloured with a clockwise increasing intensity, whilst the disks of the RCD are uniformly coloured is immaterial. It is ...
...the white background generates the third or fourth sectors. There are up to four different sectors in both the prior design and the RCD. The RCD and the art pieces of Paul Heimback both show differing clockfaces that depend on time ...
...copyright infringement. Furthermore, it points out that the idea of disks showing the time itself is not protected by either design or copyright legislation. The invalidity applicant replies arguing as follows: The clock-face with a display that changes colours is ...
...art.34(1) (c) and (2) of Regulation 2245/2002 of 21 October 2002 implementing Regulation 6/2002 on Community designs (“CDIR”) [2002] OJ L341/28. It is therefore admissible. Under art.4(1) CDR a design is to be protected as a Community design to the extent that it is new and has individual character. Novelty is defined by art.5 CDR in the following terms: “1. A design shall be considered to be new if no identical design has been made available to the public: (a) (b) in the case of a registered Community design, before the date of filing of the application for registration of the design for which protection is claimed, or, if priority is claimed, the date of priority. 2. Designs shall be deemed to be identical if their features differ only in immaterial details.” Individual character is defined by art.6 CDR “1. A 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 to the public: (a) 360 (b) in the case of a registered Community design, before the date of filing of the application for registration or, if a priority is claimed, the date of priority. 2. In assessing individual character, the degree of freedom of the designer in developing the design shall be taken into consideration.” The degree of freedom of the designer of the clock is only limited by the need to track and display the change in time. It is not disputed that the designs “Farbfolge 1” (Colour sequence 1) and “Farbolge II” (Colour sequence II) were created by the artist Paul Heimbach and made available to the public prior to the filing date of the RCD. The articles dealing with the artist Paul Heimbach’s work refer to the earlier work as: “a ...
...all other times, with no variation in the intensity of the shades. By contrast, the clock-face of the earlier design is able to produce a wide spectrum of colours by a movement controlled by the hands, the combination and intensity...