Overall Impression of a Wooden Cube Design

The plaintiff’s design showed a wooden cube with a cut-out on the upper side in which wood shavings were filled and a sloping hole on the side in which a white cylinder was inserted.

Defendant’s wood cube differed slightly in its dimensions, also had a hole on the upper side into which wood shavings were inserted but it did not have an opening for storing a bottle of perfume oil.

The lateral opening for receiving a bottle was a characteristic part of the design model which was missing in defendant’s cube.

On 24 October, 2019, the Austrian Supreme Court, docket no 4Ob168/19p confirmed the reasoning of the lower instances, according to which the design as a cube does not deviate from the traditional shapes, the opening on the upper side for receiving wood chips as well as the use of the same material were due to the technical function (releasing a fragrance of pine wood) and that the material was not subject matter of the application as design patent.

However, the reason for the different overall impression of the design was the clearly visible lateral opening.

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