A rather important judgment this month from the General Court, namely that of 13 June 2017 in Case T‑9/15 Ball Beverage Packaging Europe Ltd, (replacing Ball Europe GmbH) v EUIPO - Crown Hellas Can SA (Cans), ECLI:EU:T:2017:386, an appeal against decision R 1408/2012-3 concerning RCD 230990-0006.  It concerns the effect (or lack of it) of a description in a Registered Community Design, and makes some interesting comments on embodiments, sets, and unity of designs.

The design concerned is one of thirteen in a multiple application.  They claim priority from two German designs, 40402024 (containing 5 designs) and 40402706 (containing 13 designs).  When they were initially filed in 2004, the Office rejected the double priority claim; the succcessful appeal (on all of the designs) was R 784/2005-3 of 14th March 2006, which I briefly reported in Jenkins 'Design Features' that year.  In the corresponding US Design Patent, number D570228S1, the separate cans shown in different EU designs are described as embodiments.

The background appears to relate to "sleek cans", which as illustrated below are smaller than standard cans but otherwise, to the naked eye, much the same shape.  

Ball Packaging and Ball Europe, the proprietors, seem to have worked hard to tie up the market using design rights.  Crown Hellas have attacked the validity of their designs in a series of invalidity applications (for those who are interested the decisions are Invalidity Decisions ICD 8339, 8342-8344, 8349-8351,8353,8355, 8358, 8363 and 8366, and appeals R1408/2012-3 to R1419/2012-3).  Matters having proceeded at a leisurely pace, the invalidity applications filed in early 2011 have taken six years to get to a judgment (and there is potentially still one stage of appeal to go).

The first odd thing about this particular design, out of all of the designs concerned, is that it depicts not one but three cans.  Apparently, the applicant persuaded EUIPO (then in its first 6 months of design filings) to take all three in a single design, overcoming the initial lack of unity objection.  The second is that it contains a description - not so very unusual, but this one was in English, in a German-language application.  It read as follows:

"Group of cans for drink, all having a sleek but high appearance with reduced neck, preferably made of thin sheet metal, especially for filling volumes of 250 ml, 300 ml or 330 ml, respectively."

The Board of Appeal ignored the effect of this and treated the registration as being in fact in respect of three separate designs, the potential lack of unity objection being of no relevance after registration.  Their reason for doing so was that it was "not filed in the language of the application chosen by the applicant (Article 98(1) CDR)."  One might have thought that if this were a problem it would have merited an objection at the time of filing, but that did not happen.  They concluded that each resembled the prior art to the "informed user" and since 

"The designs in question relate to beverage cans without any imprint, which are not usually offered to end consumers in this form ... The relevant informed user is therefore a person who deals, in the beverage sector, with the filling of beverages, and who finds out about the relevant range by means of specialist journals and catalogues and through visiting trade fairs"

It is perhaps questionable whether the representations (which do not show any imprint), really show cans with no imprint, or merely show cans of a certain shape whether imprinted or not - a debate all too familiar to readers since the Trunki case.  In any event, the General Court upheld them on this.

On appeal the proprietor seems to have attempted to raise the description filed in the German equivalent from which priority was claimed, which look even more like patent claims than that filed in Europe.  Google renders these as follows:

1. Can for a drink, with a slim but highly effective appearance, with a reduced neck. Preferably made from thin sheet, and regardless of the lateral surface, suitable for 250 ml of beverage.
2. Can for a drink, with a slim but highly effective appearance, with a reduced neck. Preferably made from thin sheet, and regardless of the lateral surface, suitable for 300 ml of beverage.
3. Two drink cans immediately next to each other. The left can is slim in appearance, with a weaker neck. Their height-to-diameter ratio is particularly noticeable in comparison to a conventional can (right). Dark logos, logos and lines are considered not available. White represents any color and presentation.
4. Pair of drink cans as a design, for lateral comparison of aspect ratios (h / d).
5. Drink can group as a design group. The dark logos and logos are not valid. White represents any color and presentation.
6. Drink can group, all with a slim, but highly effective appearance, with a reduced neck, preferably of thin sheet metal, in particular for quantities of 25 cl, 30 cl or 33 cl.
7. The beverage can is slender and high in appearance; pronounced neck. Their height-to-diameter ratio and their neck formation make the subject matter of the design.
8. Essentially cylindrical can for a beverage, with a sleek, highly effective appearance, ...

This got them nowhere.  The General Court's comments on the effect of the description do not take up the Board of Appeal's language point (although they do not criticise it).  Instead, their comments cover descriptions in any language:

66      It follows, first, from Article 36(3)(a) of Regulation No 6/2002, that the function of the description which may be contained in the application for registration of a design is to explain the representation or the specimen and, secondly, from Article 36(6) of that regulation, that that description may not affect the scope of protection of the design as such. Article 10(1) of that regulation, under the heading ‘Scope of protection’, states that the protection conferred by the Community design is to include any design which does not produce on the informed user a different overall impression.

67      It follows that the description which may be contained in the application for registration may not influence the substantive assessments relating to the novelty or individual character of the design at issue. That is moreover confirmed by Article 1(2)(a) of Commission Regulation (EC) No 2245/2002 of 21 October 2002 implementing Council Regulation (EC) No 6/2002 on Community designs (OJ 2002 L 341, p. 28), which provides in particular that the description must relate only to those features which appear in the reproductions of the design or the specimen and that that description may not contain statements as to the purported novelty or individual character of the design or its technical value.

68      It also follows that that description may also not have an influence on the question of what is the subject matter of the protection afforded by the design at issue, which is clearly connected with the assessments relating to novelty and individual character (see paragraph 56 above).

If the General Court is taken at its word, a description will almost never confer any benefit.  One wonders whether these words have an unintentionally over-broad effect.  It would be wrong to allow patent claim-style descriptions to define the design, in particular to broaden it over what is shown in the representations, but since protection is primarily based on the representations, a description which explains the representations must necessarily have "an influence on" novelty and scope.  It is notable that the provisions they cite apply equally to indications of product, and to product classification, and whilst the effect of these is before the Court of Justice in Case C-361-P (though unfortunately the Advocate-General's Opinion recommends against deciding the issue) they have been used in CJEU case law to influence, though not define, the scope of protection. It is perhaps too early to abandon the use of descriptions altogether, though it might be as well to get the language right.