A few days ago the Court of Justice of the European Union (CJEU) rendered an opinion in the case of Doceram v. CeramTec. This is an industrial designs case exploring how you may know the scope of protection for an article as a function of the extent to which the appearance of the article is solely dictated by its technical function.The opinion was rendered in the German tongue and you can see it here. You can see an English translation of the opinion here.
European practitioner Alexander Haertel has written a helpful analysis of the case which you may see on the IPKat blog. He explains that until now the case law was that a so-called “multiplicity of forms theory” was used to determine if a design was solely dictated by its technical function. The “multiplicity of forms” theory has until now said that it is decisive if there is an alternative design possible (if there is, a design cannot be said to be “solely” dictated by its function). Saying this another way, until now, if there had been an alternative design possible, then the design was not “solely” dictated by its function.
But now, according to this case, the existence of an alternative design does not automatically mean that the design was not “solely” dictated by its function. To win, the owner of the design will, henceforth, be required to do more than just show that an alternative design was possible.
It will be appreciated that this case shifts the balance in Europe slightly to favor the accused infringer and to disfavor the owner of the design.
This decision does not, by itself, directly affect the law of industrial designs outside of European Union. The decision merely construes the law in EU. But this court is a respected tribunal and its writings may be influential in other jurisdictions.
Remember happiness doesn’t depend upon who you are or what you have; it depends solely on what you think. (Dale Carnegie)
That’s the same with function of a design shape, it depends on what you, me (or a court!) thinks what the function really is.