[Guest post] Designs, Dilution and Dates: The Almost Forgotten Case C-749/24 – Van Ratingen v Versuni

[Marcel Pemsel]

[Guest post] Designs, Dilution and Dates: The Almost Forgotten Case C-749/24 – Van Ratingen v Versuni

Marcel Pemsel Wednesday, September 24, 2025 - C-749-/24, CJEU reference, designs, Eva Maierski, Guest post, Henning Hartwig, Van Ratingen v Versuni

The IPKat has received and is pleased to host the following guest contribution by Katfriends Eva Maierski (Lubberger Lehment; Member of the Committee for Design Law of the German Association for Intellectual Property Law and Member of the Designs Team of Marques) and Henning Hartwig (Bardehle Pagenberg; Chair of the Committee for Design Law of the German Association for the Protection of Intellectual Property) on a request made by the Hof van beroep te Brussel, Belgium, for a preliminary ruling of the Court of Justice of the European Union (CJEU) on the interpretation of provisions of EU design law (C-749/24). While the referral has meanwhile been withdrawn, the raised questions still require a clear answer. Here’s what Eva and Henning write:

 

Designs, Dilution and Dates: The Almost Forgotten Case C-749/24 – Van Ratingen v Versuni

by Eva Maierski and Henning Hartwig

I.

What happens when a seemingly straightforward design infringement case turns into a fundamental inquiry about the architecture of EU design law? In C-749/24 – Van Ratingen v Versuni, the Hof van beroep te Brussel (Brussels Court of Appeal) referred overall three questions to the CJEU that touched upon the very foundations of EU design protection. Although the referral was finally withdrawn, this case offers a perfect opportunity to investigate the possible tensions and overlaps between design and trade mark law – and to recall the legal consequences when prematurely mixing their different logics.

II.

The dispute started with a familiar kitchen appliance: the Philips Airfryer, protected by registered EU design 1654591-0001 and EU design 1656521-0001 filed in January 2010 (during the further proceedings, Koninklijke Philips NV transferred their design rights to Versuni Holding BV):

In 2016, Belgian company van Ratingen NV launched its own hot air fryer under the name SnackTastic, offering three models manufactured in China.

Philips considered these SnackTastic designs to be infringing their registered EU designs and initiated cease-and-desist proceedings before the Nederlandstalige rechtbank van koophandel Brussel (Dutch-speaking Commercial Court of Brussels).

III.

The first instance court agreed with Philips, confirming infringement, and issuing an EU-wide injunction. But the story didn’t stop there.

On appeal, the legal focus shifted. The case was now less about comparing the registered and infringing design’s respective overall impression, but more about when and how that comparison should be assessed. This arose because the SnackTastic models entered the market six years after Philip’s EU design had been registered, at a time when many similar-looking air fryers were already available. The accusation against Philips included, among other things, that they failed to effectively enforce their design against imitations, raising doubts about the continued strength of its protection. Van Ratingen particularly challenged whether the informed user, faced with a market flooded with similar-looking products at the time of the alleged infringement, might become more sensitive to even minor design differences between the registered design and the potentially infringing one.

IV.

In October 2024, the Brussels Court of Appeal referred three questions of law to the CJEU

1. Is Article 10 of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs to be interpreted as meaning that the comparison between the registered design and the allegedly infringing design from the point of view of the informed user must be made at the date on which the application for registration is filed (or, if priority is claimed, from the date of priority), or at the date of infringement? 
2. In the latter case, could any market saturation at the date of infringement, if established, be such as to make the informed user more sensitive to minor differences between the registered EU design and the allegedly infringing designs?
3. In answering this question, is it relevant whether, and to what extent, the holder of the registered EU design has consistently acted to safeguard the exclusive nature of its design?

In fact, the three questions reveal a (to many practitioners: surprising) underlying concern: Whether EU design law should adopt the concept of a flexible scope of protection, similar to trademark law, where concepts like dilution, market evolution, and use requirements play a central role. The referring court, in any case, seemed to be testing if not blurring the boundaries of these two IP regimes with its referral. Remarkably, and disappointingly, the Brussels Court of Appeal did not show any tendency or sympathy with either party or one of their arguments (different from many other infringement courts referring cases to the CJEU).

The Brussels Court of Appeal also failed to reflect the rich body of case law already existing in the Netherlands, in Germany and in the United Kingdom. This case law provides a straightforward answer at least to Question 1 (upon which the other two questions have been built), rendering this whole matter more of an “acte clair” than a case requiring a referral to the CJEU. 

V.

Now that the parties settled the dispute and the case was officially removed from the Court’s register – with no judgment, no guidance, just a trail of intriguing questions left unanswered –, those specialized and interested in EU design law might be curious to learn that, in an article just published with Wolters Kluwer in the venerable “Intellectuele Eigendom en Reclamerecht” (Jaargang 41, Aflevering 4, September 2025), Henning Hartwig and Eva Maierski provide detailed suggestions on how these questions should be answered anyway.

Without giving too much away, their analysis suggests that EU design law is built on a static scope of protection, anchored to the filing or priority date of an EU design and immune to later market developments. Concepts like market saturation or enforcement inactivity, they argue, may be familiar from trade mark law – but they have no place in the design regime’s legal architecture.

The informed user, in this framework, is not a time traveller. He assesses the design in its original context, at the date of its creation, i.e., only in relation to the prior art – not in a market diluted or shaped by subsequent imitations. This, according to the article, finds its logic in the legislator’s intention to reward design innovations and investments made therein.

Overall, one should resist importing trade mark logic into design law – designs deserve their own logic, where the filing or priority date matters and dilution plays no role. Thus, design law should simply, and politely, decline trade mark law’s invitation to dance.