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Fishy design canned: the General Court finds it is not what is inside, but what is outside that counts

Date: 14 July 2020


The General Court has rejected appeals against decisions of the European Union Intellectual Property Office that two registered Community designs for ‘packaging for foodstuffs’ were invalid.


The court held that the designs at issue (a circular metal container and a circular glass jar with a gold lid) produced an impression of déjà vu in relation to the earlier designs.


The designs at issue:




The earlier designs:






In reaching its decision, the court rejected Gamma’s argument that the scope of the design protection could be extended to the contents of the packaging in question (e.g. fish), which were visible through the transparent lids.


In relation to the glass jar, the court also rejected Gamma’s arguments that evidence against it had failed to prove disclosure of an earlier design. It noted that ‘facts which could, in some circumstances, have rebutted the presumption of disclosure of the first earlier design were neither put forward nor demonstrated before the Board of Appeal. Therefore, the points raised in this regard before the court, in addition to being no more than statements of principle, cannot be raised for the first time before the court.’


In understanding this decision, it is perhaps useful to think of the Board’s analogy that, when assessing the individual character of, for instance, a passenger car, it is only the features of the appearance of the car which should be considered, not those of the passengers inside it. This is irrespective of whether, due to the fact that the windows or rooftop are transparent, the passengers can be seen.


While, as the General Court noted, ‘unlike packaging for foodstuffs a car is never sold with people inside’, for the reasons set out in this decision, the Board’s analogy still holds true. It is only the features of the appearance of the packaging that must be considered when assessing the overall impression produced on the informed user by the contested design for the purpose of examining its individual character.


Unfortunately for Gamma, the court took the view that the characteristics, quality and arrangement of the foodstuffs contained within the packaging in which the contested designs were intended to be incorporated could not be taken into consideration in assessing the overall impression. This was irrespective of whether, on account of the fact that the packaging or its lid were transparent, those foodstuffs were visible.


Case citation: Cases T-352/19 and T-353/19, Gamma-A SIA v EUIPO, EU:T:2020:95 (12 March 2020)


Our full article will appear in the Journal of Intellectual Property Law & Practice: JIPLP 2020, jpaa108


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