Following his earlier post on Plectranthus ornatus, the IPKat was delighted to receive a missive (two, in fact) from David Keeling. Although he is a distinguished author in his own right, David is not as well-known as he might be, since some of his most heavily-read output comes from his work with the OHIM Boards of Appeal, where he has crafted his penmanship in anonymity since the previous century (David is the longest-serving Board Member). Anyway, David writes with regard to the Court of First Instance decision in the Plectranthus case:
"You will think me a dreadful pedant but I feel I have to point out that the issue under Article 7(1) of Council Regulation No 2100/94 is whether the plant variety is distinct, not whether it has distinctive character. Curiously this mistake is made not only in paragraph 63 of the CFI's judgment but also by the Board of Appeal in the Schräder case.The IPKat hasn't stopped laughing yet, but suspects that there may be a number of CFI members who will never see the joke.
On a different note, I find it interesting that the CFI is prepared to exercise limited judicial review in the field of plant variety law but does the very opposite in trade mark cases. Presumably they think that trade mark law is easy - as it indeed it might be if they had not made it so difficult.
IP terminology is getting terribly difficult these days. We have distinctive character for trade marks, individual character for designs and just distinctness for plant varieties. There is a likelihood of confusion (or LOC as we say round here) with so many similar terms. What I am waiting for now is for the CFI to complicate design law by telling us that novelty and individual character are separate requirements which respond to different public interests. They will doubtless be telling us we committed an error of law by saying that two designs produced the same overall impression on the informed user, having regard to the designer's degree of freedom in developing the design, when we should have said that the designs were identical save for some immaterial features".