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FRIDAY, 9 AUGUST 2013
50 shades of grey - no expertise required
An interesting appeal to the General Court has just been reported - Case T-68/11 Erich Kastenholz v OHIM, Qwatchme A/S intervening - Watch dials, concerning RCD 000602636-0003, Figures shown left.
The Figures show successive clockface displays created it would seem by rotating discs of differing colours. The design is in monochrome
The earlier first instance and appeal decisions (ICD 000005528 and R 1086/2009-3 respectively) both upheld the design as valid over the cited prior document.
Unusually, this was relied on not only as prior art, but also as a German copyright, to the works ‘Farbfolge 1’ (Colour sequence 1) and ‘Farbolge II’ (Colour sequence II), created by the artist Paul Heimbach and made available to the public prior to the filing date of the RCD, depicting ‘a wall clock [Farbzeiger] with hands that move the foils and in this way wander every 12 hours from dark grey through all colour gradations back into dark grey’. Its hands move round a clock-face with the colours of the spectrum changing in a minute cycle’ (according to the ‘Frankfurter Allgemeine Zeitung’).
At first instance, OHIM simply held that the two works were different enough that there could be no copyright infringement. On appeal, the applicant made some new arguments:
Tags: appeal, copyright, expert, general court, germany, individual character, invalidation, OHIM, prior rights, watches,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA482
50 shades of grey - no expertise required
The Figures show successive clockface displays created it would seem by rotating discs of differing colours. The design is in monochrome
The earlier first instance and appeal decisions (ICD 000005528 and R 1086/2009-3 respectively) both upheld the design as valid over the cited prior document.
Unusually, this was relied on not only as prior art, but also as a German copyright, to the works ‘Farbfolge 1’ (Colour sequence 1) and ‘Farbolge II’ (Colour sequence II), created by the artist Paul Heimbach and made available to the public prior to the filing date of the RCD, depicting ‘a wall clock [Farbzeiger] with hands that move the foils and in this way wander every 12 hours from dark grey through all colour gradations back into dark grey’. Its hands move round a clock-face with the colours of the spectrum changing in a minute cycle’ (according to the ‘Frankfurter Allgemeine Zeitung’).
At first instance, OHIM simply held that the two works were different enough that there could be no copyright infringement. On appeal, the applicant made some new arguments:
- "According to the expert opinion of the Professor of Art of the University of Bonn, Mrs Gabriele Oberreuther, the general principle in the artwork of Paul Heimbach does not depend on the number of half disks, the background colour or whether the disks are coloured uniformly."
- "Under German copyright law, the range of legal protection also depends on the individual and creative quality. The artist and copyright holder can prohibit variations and modifications of the artwork if their artwork is very unique and shows a high level of individuality and quality."
- In the present case, concerning watch dials, parts of watch dials and hands of dials, the view must be taken that they are intended to be worn visibly on the wrist and that the informed user will pay particular attention to their appearance. Indeed, he will examine them closely and will therefore be able to see, as was stated in paragraph 56 above, that the earlier designs produce a larger combination of colours than the contested design and, unlike the latter, a variation in the intensity of the colours. Given the importance of the appearance of those products to the informed user, the differences, even if assumed to be slight, will not be regarded by him as being insignificant.
- As the Board of Appeal stated in paragraph 32 of the contested decision, in accordance with the international agreements on copyright to which Germany is a party, copyright protection extends to the configuration or to the features of the work and not to ideas.
- "...as is apparent from Articles 1 and 3 of Regulation No 6/2002, as a rule, the law relating to designs protects the appearance of the whole or a part of a product, but does not expressly protect the ideas that prevailed at the time of its conception. Therefore, the applicant cannot seek to obtain, on the basis of the earlier designs, a protection for those designs’ underlying idea, that is, the idea of a watch dial that makes it possible to tell the time on the basis of the colours of the discs that compose it."
- "...whether or not copyright protection exists for the original idea underlying a work of art is an assessment of a legal nature which, in the context of the present proceedings, does not fall within the competence of an expert on art."
- "...it is not for the expert to make a legal assessment of the extent of the protection conferred by copyright and on the existence of an infringement of that right.
- Therefore, the Board of Appeal was right not to take into account the considerations of a legal nature contained in the expert’s report submitted by the applicant during the administrative procedure."
Tags: appeal, copyright, expert, general court, germany, individual character, invalidation, OHIM, prior rights, watches,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA482
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