In two recent decisions, O/0878/25 and O/0876/25, applications for invalidity were made for registered designs based on Amazon listings where the Amazon web page states that the product was first available prior to the filing date of the registered design. In each decision the Appointed Person assessed the novelty and individual character of the registered designs over the Amazon listings to determine whether the registered designs were valid.
From these decisions we can see the importance of understanding the changeability of online marketplace listings and are reminded of how design freedom impacts the assessment of individual character of a registered design.
Online marketplace listings as prior art
Background
O/0878/25 and O/0876/25 are applications for invalidation where an applicant sought that a registered design be invalidated based on disclosures on Amazon which were available to the public before the filing dates of each of the registered designs.
Pages on the internet are prone to being modified without notice and without readily available evidence of how a web page appeared in the past and what was disclosed on the web page. Even when a disclosure on a web page appears to predate a registered design, it may not, in reality, have been public before the design was filed.
In these two recent decisions, the evidence of earlier disclosures of the design before the designs’ filing date are Amazon listings which include a “Date First Available” before the filing date of the registered designs.
O/0878/25 – Purrfects Limited
In O/0878/25, Shenzhen Zhongdian United Communications Co. Ltd applied for Purrfects Limited’s registered design for a slow-feeding dog bowl to be invalidated based on six Amazon listings with ‘first available’ dates before the filing date of Purrfects’ design.
Purrfects argued that the Amazon listings are not evidence of prior public availability of the designs and that Amazon listings can be updated without having the ‘first available’ date on the listing change. In light of this point, the Appointed Person in O/0878/25 reviewed each of the six Amazon listings which the Applicant provided, and found, in five of the six Amazon listings, there were photographs attached to reviews that show that the actual product being sold was not the same as the image on the listing of a dog bowl which appears to be prior art for Purrfects’ design. Even though the review photos were posted after the filing date of the design, the Appointed Person considered them to show that, at some point, the listing had been changed since the listed ‘date first available’.
There was one listing which did not have any reviews or evidence to show that the listing had been modified at any time. The onus was put on the Purrfects to show evidence of a change in the listing, so without any evidence that this listing might have been modified, it was allowed as prior art and so was the only listing which the Appointed Person considered for the novelty and individual character of Purrfects’ design.
O/0876/25 – Ryzan Online Limited
Similarly, in O/0876/25, Limars Ltd applied for Ryzan Online Limited’s registered design for a post box to be invalidated based on an Amazon listing ‘first available’ before the filing date of Ryzan’s design.
However, in this case, the design proprietor Ryzan Online Limited did not question the listing as prior art for their design, and so the Appointed Person accepted the design as prior art and assessed the design’s validity based on the listing.
Key takeaways for online marketplace listings as prior art
Shape and colour and individual character
Background
In these two decisions, the Amazon listing showed products which appeared similar to the registered designs which each Applicant sought to invalidate.
For a design to be valid, it needs to be both new and have individual character.
“New” for a design is when no identical design or design differing only in immaterial details has been made available to the public before the relevant date.
“Individual character” is when a design produces a different overall impression on the informed user than any design made available to the public before the relevant date. According to the case law relating to registered designs, assessment of individual character needs to take into account the sector of the products of designs and the designer’s degree of freedom in developing the design. Different elements of the design might also be given more or less importance by the informed user based on the practical use of the products.
O/0878/25 – Purrfects Limited
For Purrfects’ dog bowl, the design comprises raised columns in the inside of the dog bowl to slow down a dog eating from the bowl. The Appointed Person considered the sector to be dog bowls aimed at encouraging a dog to eat at a slower pace.
In terms of design freedom, the Appointed Person considered there to be significant scope in deciding the colour, shape, and size of the dog bowl, and the nature of whatever elements in the bowl aim to slow the consumption of food. With a large amount of design freedom, the overall impression of the design is going to be focused more on the bigger picture of the design than in individual elements.
The Amazon listing and the Purrfects design had similar overall shapes and had identical size, shape, and arrangement of the raised elements in the bowl.
| Purrfect Design | Amazon Listing |
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The Amazon listing differed from the design in that there was a difference in colour – the registered design showed a blue bowl while the prior art bowl is light green. The difference in colour at least meant the registered design was novel over the Amazon listing, which highlights the low bar for a design being considered “new”.
The design also included views of the underside of the bowl, showing features on the bottom thereof – in particular, that there are non-slip feet at the middle of each of the four sides of the dog bowl, and that the hollow shapes of the raised elements can be seen from the base of the bowl. However, the Amazon listing only showed one image where the bottom of the bowl wasn’t visible.
1. The underside of the bowl in Purrfects Limited’s registered design
Despite these differences, the Appointed Person considered the Purrfects registered design to lack individual character over the Amazon listing. They considered the identical raised elements to outweigh any other differences in the overall impression of the design on the informed user. They also considered that the informed user would put less importance on the base of the dog bowl since it isn’t visible in use.
O/0876/25 – Ryzan Online Limited
In O/0876/25, Ryzan’s design was for a black, cuboid-shaped post box, with a flap for putting in post, a keyhole, and a small window towards the bottom of the post box. The design also included a logo, which hadn’t been disclaimed, and so was part of the registered design. The Amazon listing showed a post box which was also black, cuboid shaped, with a flap, a keyhole, and a window. The differences between the designs were the proportions of the cuboids, the proportions of the borders along the flaps, the orientation of the keyhole, and Ryzan’s logo appearing on the registered design. By virtue of these differences, the registered design was considered to be novel.
To determine whether Ryzan’s post box design had individual character, the Appointed Person in O/0876/25 considered the design freedom of the designer of the post box to be constrained by the requirements of the function of the post box – for example, there must be a flap, and there must be some way to open the flap such as a lip or a knob. The box must be able to be opened by a larger opening to access the mail inside and must be lockable, for security. The box needs to be shaped and sized to fit standard mail, so is likely to be cuboid shaped. Many of the similar features between the registered design and the prior art fall into these categories where the design freedom is restricted. What the designer does have freedom in is the colour, the proportions, and any decoration of the box. With these design constraints in place, the overall impression of the Registered Design is going to focus more closely on the specific features where there is creative freedom.
Based on this assessment, the Appointed Person considered the logo, as decoration, and the proportions of the cuboid shapes to be enough to create a different overall impression on the informed user, and so the design remained registered.
The importance of design freedom in assessing individual character
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