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Pepsi pog case appeal - the Advocate General's opinion

16 May 2011

The Advocate General (AG) has advised the ECJ to dismiss Pepsico’s appeal against an invalidity ruling concerning a design for promotional discs known as “pogs”.

Pepsico’s design was challenged on the basis that it did not have individual character having regard to an earlier CRD. A design has individual character if it creates a different overall impression on the informed user than designs which were available to the public before the filing date of the design. When assessing individual character, the degree of freedom of the designer in developing the design is considered.

The AG recommended dismissing the appeal on the grounds that assessing individual character and design freedom are questions of fact, which can only be re-considered by the ECJ in the case of distortion.

Because “overall impression” can only be subjectively assessed, and cases will almost always turn on their facts, litigants are likely to find it extremely difficult to appeal cases to the ECJ.

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