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Mobile Devices

Mobile Devices. Elisabeth Fink Boards of Appeal, OHIM Patrice de Cand é General Partner of de Candé-Blanchard Chris Carani McAndrews, Held & Malloy Ltd. Chair: Darren Smyth Partner in Charge, EIP Elements Practice Group. Mobile Devices and Design The French Approach. Patrice de Candé

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Mobile Devices

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  1. Mobile Devices

  2. Elisabeth Fink Boards of Appeal, OHIM Patrice de Candé General Partner of de Candé-Blanchard Chris Carani McAndrews, Held & Malloy Ltd. Chair: Darren Smyth Partner in Charge, EIP Elements Practice Group

  3. Mobile Devices and Design The French Approach Patrice de Candé General Partner, de Candé-Blanchard

  4. Court of Appeal Aix-en-Provence: • 3 December 2009: Alcatel Lucent v H Waldmann • Author’s right • French registered design Precedent

  5. Alcatel Lucent v H Waldmann CA Aix en Provence 3 December 2009 • Decision of the Court of appeal: six pages. • Author’s right and registered design considered simultaneously. • Cancellation of the registered design. • Action dismissed on both grounds.

  6. Dotted lines: • No precedent. • A French judge will likely disregard the feature as being disclaimed (designs do not protect what is not visible). Hatching: • No precedent • A French Judge will likely regard this feature as part of the appearance of the device.

  7. Existing design corpus • HCJ decision Samsung vs Apple : • six pages. • A French decision would not analyse in such great detail the existing design, corpus (one or two pages). • Relation between definition of the informed user and existing design corpus: less taken into account.

  8. iii) Nature of the product • No inference of the indication of the product: “hand held computer” (HCJ point 44: influence on the existing design corpus and 46: influence on design constraints). • Analysis similar to the analysis in author’s right matters.

  9. iv) Features dictated by technical function • Application of the “multiplicity of forms” theory. • If there is an alternative: feature is to be protected. • Supreme court refused this theory under the former law: evolution possible?

  10. v) Informed user – overall impression • French Courts seldom specify who the informed user is: habit taken from author’s right approach. • Tendency to interpret overall impression as equivalent to risk of confusion (Supreme court: 26 March 2008). • It is not necessary under French national law to consider the degree of design freedom when assessing the scope of protection of the registered design (article L 513-5 IPC).

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