The winged goddess of Victory smiled on Nike her namesake, on 30th January, when the EU Court of Justice ended Mr Thomas Murphy's appeal with an Order rather than a Hearing - the first use of this procedure on a point of substantive design law of which we are aware. The case was�C-538/17 P Murphy v EUIPO.

We previously reported on the General Court judgment T-90/16 - Murphy v EUIPO - Nike Innovate (Electronic Watch Bracelet) here. The appeal was on three points, the most generally significant of which was whether the General Court had wrongly ignored the principle that the pioneering nature of Mr Murphy's design gave it a broader scope when assessing its impact on Nike's later filing.

The Advocate-General (whose Opinion is not separately published but was adopted by the Court in its Order) found that "the existence of such a principle is not apparent". Such Opinions usually cite considerable background research - this one does not, so we do not know what was in the A-G's mind, but we think that the "pioneer principle" is in fact a well-established doctrine, used for example in Procter & Gamble v Reckitt Benckiser in the UK Court of Appeal, and the two Pram judgments of the German Supreme Court. We hope the Court did not intend to cast doubt on the existence of the principle in infringement cases, even if it is correct that its application in invalidation proceedings such as the present case is not apparent.

On the other two appeal points (the symbolic interpretation of elements of pictures in registrations, and an issue of design freedom), the Court found no basis for challenging the General Court judgment.