30 November 2021
Brands Update – November 2021 – 1 of 3 Insights
The central question in this case was whether use in relation to a handheld gaming console could be considered use in relation to a "data carrier containing programs" or an "audio and/or image carrier". The General Court considered that the purpose or intended use of the products in question, as determined by consumers, was critical to this question (as opposed to any technical definition of the product).
In its earlier ruling, the Board of Appeal had taken the view that Sony had promoted the gaming experience of the PlayStation Vita to consumers, not its potential storage capacity (which was only mentioned in the PlayStation Vita's technical specification).
While the PlayStation Vita was, technically, a "data carrier containing programs" or an "audio and/or image carrier", that was not how it had been promoted to consumers. The data/audio/image carrier functions were ancillary to the PlayStation Vita's main purpose, a transportable gaming device. The multi-functionality of the device was irrelevant.
Although the data carrier function was mentioned in the evidence submitted by Sony, this was only by reference to the fact the PlayStation Vita stored the system's software; it was a necessary function and not the exclusive (or one of the main) purposes of the console.
The General Court's decision highlights:
To discuss the issues raised in this article in more detail, please reach out to a member of our Brands & Advertising team.