The General Court of the European Court gave its ruling today in Case T‑494/12, Biscuits Poult SAS v OHIM, Banketbakkerij Merba BV. Biscuits Poult applied to register the two views of a biscuit which are portrayed below as a Community design, unsurprisingly for "cookies".

The Commmunity design was registered in 2009, whereupon Merba applied to have the registration cancelled, maintaining that the design in question was not new and had no individual character and that its appearance was dictated by its technical function within the meaning of Articles 5, 6 and 8 of Regulation 6/2002. The declaration of invalidity was supported by its earlier designs, two of which are illustrated below.

The Cancellation Division rejected the application for a declaration of invalidity but the Board of Appeal took a different line. According to the Board of Appeal, the layer of filling inside the cookie could not be taken into consideration for the assessment of the individual character of the contested design, as it did not remain visible during normal use of the product. Next, the outer appearance of the challenged design was the same as three of Merba's earlier designs. Lastly, the contested design did not produce on an informed user who regularly consumes that type of cookie a different overall impression from that produced by the earlier designs, given the broad margin of freedom the designer of this type of product has.

Biscuits Poult's appeal to the General Court was dismissed. That court said, in particular:

"26 ... the fact that the product in question may bear a closer resemblance to the contested design when it is broken open in order to be consumed is irrelevant.

27 The applicant’s argument to the effect that the layer of chocolate filling inside the cookie becomes visible during ‘normal use’ of the cookie, that is to say, when it is consumed, is based on a misunderstanding of Article 4(2) and (3) of Regulation No 6/2002 and is therefore ineffective. It is apparent from those provisions that the concept of ‘normal use’ is relevant only when an assessment is to be made of whether protection may be given to a design applied to or incorporated in a product which constitutes a component of a complex product within the meaning of Article 3(c) of Regulation No 6/2002. Article 4(3) of that regulation further states that the concept of ‘normal use’ is to mean ‘use within the meaning of [Article 4](2)(a)’.

28 The parties all agree, correctly, that a cookie such as the one portrayed in the contested design 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. Consequently, the characteristics of the contested design which may be protected must be determined by reference to the rules referred to... above, which, in respect of products which are not components which may be assembled in a complex product within the meaning of Article 3(c) of Regulation No 6/2002, do not refer to the concept of ‘normal use’, but rather to the appearance of the product within the meaning of Article 3(a) thereof.

29 Therefore the Board of Appeal did not err in stating ... that the non-visible characteristics of the product, which do not relate to its appearance, could not be taken into account in the determination of whether the contested design could be protected, nor in concluding ... that ‘it [was] not necessary to take into account, in the examination of the individual character of the design, of the filling inside the cookie, as portrayed’".