Once again the Supreme Administrative Court (SAC) delivers a judgment which, unfortunately, instead of following established paths, seeks its own way of understanding the issues crucial for industrial designs – said way being regrettably far from desirable. Namely, in its judgment of 13 March 2013 (case file No. II GSK 2340/11) the SAC decided in the matter of invalidity of an industrial design for a roller blind cassette (No. R-8019) registered with the Polish Patent Office.

No. R-8019

The basis for the ruling was an earlier publication of an industrial design filed with the Polish Patent Office (No. Ru-64349) and the pending conflict concerning individual character of the later design.

 No. Ru-64349

The case has been examined by the SAC before, and as a result of the previous judgment it came back to the Patent Office, which once again invalidated the discussed design and the decision was upheld by the District Administrative Court (DAC). The SAC, however, was of the opinion that neither the Office nor the DAC fulfilled the imposed recommendations and for this reason the case should be examined again from the start. In other words, the conflict has already gone through six instances and further ones will follow.

What is interesting in the matter, however, is the standpoint of the SAC concerning a knowledgeable user (equivalent of an informed user of the CDR (EC) No 6/2002) and freedom of the designer in developing the design. In the opinion of the SAC: “in the field of window roller blind cassettes freedom of the designer is limited. The strictly utilitarian character of the product (mainly its masking function), its discreet form, result in a very small degree of freedom in developing the design, and therefore the overall impression must be related to minor differences. Taking into account the character and the purpose of roller blind cassettes, there can be no significant differences between those products. Therefore, when discussing the “overall impression” produced by roller blinds cassettes on the knowledgeable user, it was necessary to take into account even small differences and consider whether they influence the “overall impression.”

The discussed judgment would therefore be an academic example of a correct ruling, even an exemplary one, had not the SAC indicated as correct and de facto relied on the earlier judgment of the DAC (dated 10 October 2007, case file No. VI SA/Wa 1116/07) issued in another case concerning industrial designs, specifically related to baseboards. In the cited judgment it was stated that “a ‘knowledgeable user’ is one who knows that there are various types of baseboards and examines them minutely. A ‘knowledgeable user’ of baseboards is surely not a person who looks at the baseboards after they are installed in a room. The nature of this product is such that – after the baseboards are installed correctly – they are practically invisible, because they are an immaterial detail of the interior design. What would be visible would be the absence of baseboards or defective installation. (Is this a new definition of visibility of the design during normal use? – remark by KM)  A ‘knowledgeable user’ of baseboards is a person who is seeking them and only intends to install them, being a contractor or an investor. A ‘knowledgeable user’ of baseboards, before choosing the appropriate product scrutinises it closely, compares different types of the product available, examines the appearance and functionality. A ‘knowledgeable user’ rather inspects the product (the baseboard) in the shop, from the top and from the bottom, holds it, takes a look from a small distance, inspects the longitudinal “front” elements and “channels” for cables at the back.” In fact it is difficult to comment on the presented thesis without making cutting remarks, since they only confirm that Catch-22 is still in operation, especially when we consider the statement about invisibility of the design. We can only admire the heroic efforts of industrial design representatives struggling to foresee the direction the SAC will take when adjudging on design cases.