Design of food packaging: Content is no part of the design

A Community design may in general be registered only on a design as filed with all its visible parts. Nevertheless, a design for the design of food packaging was rejected by the European Court. The contents of this packaging were not considered part of the design.

Design of food packaging

In the judgment Gamma-A / EUIPO – Zivju (EU: T: 2020: 94) concerning the design of food packaging, the applicant for the Community design (Latvia) was today defeated before the European Court (CJEU). Due to lack of individual character of a design and also due to lack of novelty, the requested registration of the design was refused (according to Article 25 of Regulation No. 6/2002). The intervener Zivju (Latvia) referred to an older and very similar food container with a transparent removable lid, known as CANPEEL®, developed by O.Kleiner AG.

The applicant Gamma-A relied in particular on the overall impression which, according to the Board of Appeal, was the same as that produced by the earlier food container CANPEEL®. The decisive factor in that assessment was that the Board of Appeal did not consider the contents of the food packaging to be part of the design, but the Cancellation Division did.

Content is not part of the design

The CJEU today confirmed the view of the Board of Appeal: the contents are not seen as part of the design of a food packaging. An informed user will perceive the contested design as packaging according to its purpose and will distinguish between the food packaging and the contents. Therefore, the appearance of the foodstuffs in the packaging and their specific arrangement in that packaging are not relevant for the purpose of assessing the overall impression, the CJEU held.

In this context, the Court also referred to the concept of “informed user”. According to the case-law, the term “informed user” must be understood as being somewhere between that of the average consumer and that of an industry expert. In general, no direct comparison between the marks or designs in question is possible, but an informed user is nevertheless aware of the different designs that exist in the sector concerned, the CJEU outlined. An informed user shows a particularly attentive level of attention, the CJEU clarified. In the food packaging sector, this would be a consumer of canned food or a professional in the food industry, both with a high degree of attention.

Design is registered as it is visible

Applicant Gamma-A had also argued that a Community design could only be registered on a design as it is applied for with all its visible parts. And the contested Community design shows the design of the food packaging with contents in that packaging.

In this context, please also read our article: Jägermeister loses design dispute against EUIPO

However, the Court rejected that objection. The applicant could not rely on the relevant recital 11 of Directive 98/71/EC and EU Regulation 6/2002, according to which protection is granted only to the visible parts of products or parts of products which can consequently be registered as designs. This is because Directive 98/71/EC primarily serves to approximate the laws of the EU Member States on the legal protection of national designs. In the present case, however, both the applicant and the intervener come from Latvia, so that competition in the internal market is not distorted by differing national interpretations of the law.