Federal Court of Justice (FCJ) on the scope of protection of a Community design

In the decision Meda Gate (I ZR 164/17), the Federal Court of Justice again continued its existing case law regarding the scope of protection of a Community design and supplemented the decision Kinderwagen I in this respect. In this decision, the FCJ stated that the difference between the plaintiff’s design-in-suit and the existing design corpus in principle has to be assessed on the basis of the overall impression of the opposing designs. A mosaic-like examination of individual elements of different oppositions is not permissible. It is not sufficient for the assessment of the overall impression, if the judgment only inserts illustrations without expressly establishing the overall impression.

It is not permissible only to compare individual features of previously known designs with the subject matter of protection of the design-in-suit for the purpose of comparing the design-in-suit with the known existing design corpus. Thus, even if one or more design features of a Community design are found in the existing design corpus, this does not say anything about the scope of protection. This mosaic-like comparison is already inadmissible on principle. The only decisive factor is the overall impression of the opposing designs, which determines the degree of similarity between the design-in-suit and the known existing design corpus. The FCJ has therefore annulled the judgment of the Higher Regional Court of Cologne and referred the case back for retrial.