Date: 16 May 2018
By Hugh Dunlop
Before the CJEU gave its ruling in Doceram v Ceramtech, the Brussels commercial court was faced with an invalidity defence based on Article 8(1) CDR (“solely dictated by technical character”) in relation to assertion by Koninklijke Philips of design rights relevant to its AirfryerTM product (shown on the left) against the marketing of a competitor product (shown on the right). (Case reference A/17/0079)
The court dismissed the invalidity counterclaim.
It is up to the defendant to prove that a feature is solely dictated by its function and in this case the defendant failed to meet that burden of proof.
The defendant made reference to a patent for the internal technical structure of the Philips product and argued that the external shape was dictated by the internal technical structure.
The court found that, although heat circulation and other technical factors played a role, the external design did not coincide with the internal structure and Philips enjoyed a substantial degree of freedom in the developing of the design.
Nothing in the later CJEU decision would have changed this finding, because the Brussels court held that the determining factors in the Philips designs where aesthetic considerations.