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WEDNESDAY, 21 AUGUST 2013
Postoperative dressing vs. Protecting clothing
As an effect of the complaint filed by Mrs. Krystyna Debowska-Kuna the case was examined by the District Administrative Court (DAC), which dismissed the complaint (judgment of September 20, 2010, VI SA/Wa 852/10 . The Judge noticed that the disputable design has six fixings of the clothes, and the design of the complainant – five, and moreover, the fixings have been made from a different material, therefore there are differences between the designs which cannot constitute about their identity. The Judge agreed with the standpoint of the Office that if the designs are destined for supporting the dressing on the abdomen and the area under the abdoment of the dog or a cat, they must be consistent with the anatomy of the pets, and the features connected to this fulfil only technical functions.
Tags: clothing for pets, fashion, individual character, Novelty,
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Postoperative dressing vs. Protecting clothing
I would like to point
out to one of not that old judgements of the Polish Supreme Administrative Court II GSK 796/11 ).
In the beginning, it
shall be stressed that the description containing listing of the significant
feature is a required element of the application of the design for the
protection in the Patent Office of Republic of Poland. Moreover, in practice it has a great
influence for the evaluation of the individual
character of the design, since usually in the event of a conflict they in fact
are treated as binding for the holder.
The case pertained to
the op position
of Mrs. Krystyna Debowska-Kuna, a
holder to the industrial design „postoperative dressing for dogs and cats” No. Rp-4786, on which she based her op position
against an industrial design registered in the Patent Office RP belonging to
the company ZOO-HOBBY Sp. z o. o. –
„protecting clothing for pets” No.
Rp-13123. Op position’s
charges covered lack of the novelty of industrial design, i. e. the
infringement of the Article 103 paragraph 1 of the Act on Industrial Property
Law of June 30, 2000 and lack of individual character regulated in the Article
104 paragraph 1 of this Act. The
Patent Office dismissed the op position in its decision of November
18, 2009.
| „postoperative dressing for dogs and cats” No |
 |
| „Protecting clothing for pets” No |
Moreover, in the
evaluation of District Administrative Court, the novelty of the "clothing" results
from making it from the elastic cotton jersey with folds of a single-bearing
braid and using elastic jersey in trimmings and straps (the features were
indicated in the description of the design).
At the same time, the Court noticed that in the description of "postoperative dressing" design, the
complainant preferred admittedly the use of cotton, but as a significant
feature she considered „four ribbling legs of a proper length and width and
sewn it to the fabric similar to the rectangle”, whose elements are missing in
the disputable design. Even so, the District Administratvie Court op enings.
Continuing its reasoning, the Judge pointed out that the informed user will be
able to see the difference between the designs, as the legs in the design of
the complainant give, and in consequence, the complaint has been dismissed.
The above resolution did
not satisfy Mrs. Debowska-Kuna who
has appealed against the judgement of the District Administrative Court Supreme Administrative Court .
Supreme
Administrative Court stated that analysing the prerequisites of the
registration of the disputable design, it shall be examined whether the use of
the new fabric lead an informed used to the conclusion that thanks to e. g. the
fabric used, the known functional object has acquired a new, different look. If the applicant applying for a specific design
for registration considers a fabric from which it is made, as a significant
feature of this design, then the Patent Office should evaluate whether the use
in reference to already known products defined due to the braid of the thread,
creates a new and special quality, then being different from the ones known in
the industrial designs. Whereas, the
comparison should be made comprehensively, taking into account the descriptions
of the design, reserved specific features and enclosed drawings and
photographs. This note becomes
especially meaningful according to the statement made in the description of the
"dressing", that the product is made from a soft, thickly woven fabric, ribbing
jersey, preferably cotton, whereas the "clothing" according to the disputable
design is made from „elastic cotton jersey”.
The Court stressed that sometimes possible differences may be noticed only in
the result of direct analysis of the products made according to contrary
designs and this happens when we are dealing with an estimation whether the
applied material creates the form of the product differently.
However,
in the op inion
of Supreme Administrative Court, the way of weaving the cotton fabric
(singe-bearing braid or two-bearing braid), if it constitutes invisible element
or slightly visible to the eye, even of a careful receiver (informed user), it
cannot have influence on i. e. overall impression that the product made in such
way will be significantly different from the product according to the design of
the complainant, made from a soft cotton fabric.
Next,
the Supreme Administrative Court .
If then, the shape of the covering does not distinguish both designs, although
as it results from the description of the disputable design, it is the shape of
the "clothing" that has a new and original character, then the difference should
result from a different feature applied
for, giving a main part of the design, a new, special look. If the distinctive feature of the design is to be
the material, from which the product is made, then the material must give this
product a shape which will distinguish it from the design registered previously. In the evaluation of Supreme Administrative Court .
Nevertheless, Supreme
Administrative Court .
The Supreme
Administrative Court raised interesting objection concerning conclusion of the
District Administrative Court that the disputable design differs from the op posed one
in a way that the last one has four ribbing legs, which are missing in the
disputable design, The Supreme Administrative Court noticed that, simplifying
the estimation made by the District Administrative Court – the design of the
complainant registered earlier has more elements (legs), then the design that
does not have these elements, evidences an individual character. In the op inion of the Supreme Administrative
Court, such conclusion is risky because it is doubtful whether we can talk
about novelty and creative contribution in the look of the design in a
situation when it is created by disposing another, known design of a certain
specific feature.
On the account of my
short commentary, it is difficult not to notice that the estimation of the Supreme Administrative Court .
It is also difficult to not agree with the Supreme
Administrative Court .
It does not seem that these features are in a sufficient manner visible, not to
mention the softness of the fabric or its stretchiness.
We cannot talk about proper findings in the matter regarding the designs when
they are based on the description of the design, without analysing the
illustrations. The standpoint of the
Supreme Administrative Court .
However, in my
estimation not all of the thesis of Supreme
Administrative Court . I have in mind the issue of influence of the
creative contribution in the creation of the design, this category is typical
for copyrights, where indeed, a significant for the individual character of the
design is personal creative effort.
In reference to registered designs, this category is unfamiliar and it disturbs
the objective estimation of its individual character.
This is why, it is not relevant whether the design was created by the
elimination of the features, if it only
possesses its own individual character, which is however difficult to imagine
by a change, like in the discussed case.
Posted by: Krystian Maciaszek @ 19.00Tags: clothing for pets, fashion, individual character, Novelty,
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