Design… inside a cookie 23 Oct 2014

In Case T-494/12, concerning RCD invalidity proceedings for the design depicted below, the General Court has upheld the Board of Appeal’s decision to invalidate the design over lack of individual character.

T49412(image1)

The Court ruled that

-the layer of chocolate filling inside the cookie becomes visible only if the cookie was broken, so  this characteristic does not relate to the appearance of the product at issue,

-the cookie as depicted in the RCD registration is not a complex product within the meaning of Article 3(c) of Regulation No 6/2002 because it is not composed of multiple components which can be replaced permitting disassembly and re-assembly, and

-the irregular, rough surface on the outside of the cookie, its golden colour, round shape and the presence of chocolate chips are characteristics which are common to the conflicting designs and decisive for the overall impression produced on an informed user, so that the contested design cannot be regarded as having individual character

Although, for chocolate-filled cookie lovers, such products can be very complex taste-wise, from an IP perspective it seems rather reasonable to say that the filling is not visible before one cracks the cookie!