First Decision of the Austrian Supreme Court regarding Infringement of a Community Design Right

In the decision » 4 Ob 177/05s the Austrian Supreme Court dealt for the first time with the prerequisites for validity of registered community design rights as well as with the question of infringement of a community design right.

With respect to validity the Supreme Court said that a design right has sufficient individual character (besides novelty), if none of previously known designs anticipate all the formative features of the community design right or if a previously known design includes a formative feature which is not contained in the community design right. However, features must not be compared on a feature to feature basis but rather the overall impressions of the opposing designs must be tested. In case that all features contribute to the overall impression to the same extent, individual character is approved, if the community design right and the previously known design differ in at least a single feature from each other.

With respect to the scope of protection the Austrian Supreme Court said that individual character and scope of protection act inversely per definitionem such that a high degree of individual character leads to a greater scope of protection. On the other hand, a low degree of individual character leads to a narrow scope of protection as in this case already small differences lead to a different overall impression. Whether there is a likelihood of confusion between the opposing designs is irrelevant, as according to the intention of design law design rights are not badges of origin. The intention of the design legislation shall rather encourage an ongoing development in the art of designing.