"Flower of Life"
In this issue, we report on a recent decision handed down by the Austrian Supreme Court in relation to a design infringement case.
Both parties to the proceedings produce jewellery with esoteric symbols. The plaintiff relied upon unregistered Community design rights for a ring in the shape of the "flower of life" symbol - a geometrical figure composed of multiple evenly-spaced, overlapping circles - to request a preliminary injunction against the selling of similar rings by the defendent.
The defendent argued in defense that the "flower of life" was an ancient symbol of energy being widespread in different cultures. Thus, the plaintiff's ring lacked individual character. Furthermore, the differences in the designs gave rise to a different overall impression.
The 1st and 2nd instance courts denied the request for injunctive relief. The Austrian Supreme Court confirmed the decision of the lower instance.
With reference to the (harmonised) case law, the Austrian Supreme Court stated that designs having a lesser degree of individual character may only enjoy a narrow scope of protection. In the present case, the ring made public by the plaintiff was found to be sufficiently distinguished from the prior art. As the differences may not entirely be attributed to technical function, the plaintiff's design had individual character. However, the Austrian Supreme Court went on to say that the distinctions from the prior art were small, in particular with regard to the central "flower of life" motif, with the effect that the scope of protection must be construed narrowly.
On this basis, the Supreme Court found that the informed user will pay attention to the small differences in the rings of the parties. In the following, the Supreme Court meticulously listed the slight variations in the design elements of the rings at issue. On the one hand, the front face of the defendent's ring had a slightly more elongate shape. Also, the flowers in the ring of the defendent left less open space. The slightly different appearance of the hoop members also added to the different overall impression. Thus, the plaintiff's case had to fail.
It remains to note that the scope of protection conferred by design rights may be minuscule in cases where the prominent design features are widespread in the prior art. In the present case, this assumption lead to a finding of non-infringement despite striking resemblances between the opposing designs at first sight. In any case, the approach taken by the Austrian Supreme Court seems to entail the risk that small differences in the designs are being exaggerated, as the harmonised European Design Law requires an assessment of the overall impression rather than a feature-by-feature analysis of slight variations in the opposing designs.
DI Johannes Strobl