Modern Israeli homes and schools are built with sealed rooms. These reinforced rooms with special concrete are designed to provide protection from rockets and from chemical and biological warfare.
Termo-Gumi LTD. (Thermo Seal) have a registered design (no. 310007) for a window seal for the regulation window of a sealed room. The seal was registered in class 25(1) as a rubber seal for an aluminium profile. A cross-section of their window seal is shown above.
Agmon, the Company for the Manufacture of Rubber and Plastics LTD initiated an annulment proceedings challenging the validity of the registration on the grounds that the seal had been prior exhibited, with a supplementary argument that the seals being manufactured were slightly different from the seal as registered. They also argued that since the seal was sold cut to size, and the registration only showed a section, as would be suitable for continuous extrusions, the registration was invalid as not indicating the appearance of the seal.
Shalev Shmulovich argued that the design as registered was slightly different from those previously available, and reproduced images from the catalogues and from previous registrations. He also ruled that the slightly different profiles of the seals actually being manufactured with regards to the shape of the aperture and of the tongue were both the results of tolerances when extruding rubber. He ruled that the customer was the building contractor and not the home purchaser, and considered the design to be sufficiently novel and original to be registerable.
The annulment proceeding was dismissed and costs of NIS 30,000 were awarded to Termo Gumi.
The case: Annulment Proceedings Concerning Registered Design Number 31007 to Termo Gumi LTD, brought by Agmon Company for Manufacture of Rubber and Plastics LTD, before Noach Shalev Shmulovich, 4 April 2011.
The Deputy Commissioner, Noach Shalev Shmulovich relied heavily on Russell-Clarke & Howe on Industrial Designs, a leading text in the field. He also quoted heavily from US design rulings. He ruled that the amount of novelty required for design registration was slight and so is the work around. The judge is supposed to put himself in the position of the customer and compare the design with others on the market.
This is all well and good. The problem is that rubber window seals for sealed rooms are purely functional and, when window is closed, are not seen. The only justification given in the ruling for allowing a design registration for this type of thing is that if the current design is not registerable than nor is the previous design. I submit that this may indeed be the case!
There is insufficient Israel case-law on the design registerability of purely functional objects. In the US, at least, a design patent for such an object would not have the novelty and aesthetic non-obviousness to stand up in court. Consequently, the citations from US case-law are at best, irrelevant.
There is another problem. the component is not merely functional, but is also essentially a replacement part.
I think seals for such purposes may need to conform to various standards and could be packaged with a manufacturers name or on a roll with the manufacturers name on it, but am not convinced that the correct balance between competition law and the conflicting interests of the manufacturer, competitors and the public is to require the competitor to design around components of this nature.