Alicante News reports another OHIM Board of Appeal case R 1114/2007-3 on functional designs, following their earlier "Chaff cutters" decision in requiring the presence of some feature "chosen for the purpose of enhancing the product’s visual appearance" to avoid rejection as being dictated by technical function. We shall see whether the Court of First Instance follows the same line in the Chaff cutters appeal.

This case is a little unusual on the facts in that the design, RCD No. 273644-0001, is a single, sketchy, line drawing (apparently done freehand with a ruler) showing nothing much over the voluminous cited prior art - with such a minimal design, there was perhaps little prospect of validity, even though by citing so many close prior documents the opponent might otherwise have shot themselves in the foot by showing a "crowded field".

There was also an interesting finding on the "informed user". As the indication of product was directed to "packaging for foodstuffs", the Board found that the informed user was a trade user not an end-consumer:

"The informed user in this case is likely to be a production manager in a company that makes food products that are packaged in pouch-like containers, rather than an ordinary consumer who buys pre-packaged food products. The design represents ‘packaging for foodstuffs’, not finished products for sale to the end user."