Biscuits are not meant to be eaten

For the purposes of assessing the distinctive character of a product, only the external appearance is decisive. For this reason, in the view of the EuG, the interior of a biscuit can have no significance for the question of whether a design is capable of protection.design.

The HABM rejected the application for registration of a design consisting of an image of half a biscuit with filling (see right) on the grounds that it lacked novelty. Only the external shape of an intact biscuit should be taken into account, not its interior. Viewed in this way, the registered biscuit does not create a different overall impression from other biscuits and is therefore not capable of protection.design.

The decision of the court

In its judgment of 09.09.2014 (Az. T-494/12), the EuG concurs with this assessment. The biscuit as such does not evoke any different overall impression in the informed user than comparable products, which is attributable in particular to the considerable design freedom in biscuit design. The interior cannot lead to a different assessment because it is not visible during the intended use of the biscuit (but only becomes visible when biting or breaking it). However, the assessment of distinctive character does not depend on such an "invisible" feature.

Conclusion

When it comes to biscuit design, there are also legal pitfalls to watch out for. Unfortunately, the court did not clarify what the intended use of biscuits actually is. Apparently not to be eaten.