R1341/2017-3

• ›The design holder (appellant) challenged the first-instance invalidation of its RCD for baked goods (a rectangular three-layer milk snack with a dark central filling strip), arguing that D1 was not proven to be disclosed, that prior art showed only stylised drawings not faithful representations, and that differences in proportions, texture and the dark central strip sufficed to establish individual character given limited designer freedom.
• ›The invalidity applicant (respondent) argued that D1 is a realistic depiction sufficient to establish disclosure, that a 1997 disclosure is not 'historical', and that the rectangular layered form is common; it also revealed that the parties had a 2014 exclusivity agreement for the product, which the holder later registered as its own design.
• ›The Board based its analysis on D5 (Milch-Schnitte Wikipedia entry), found it disclosed before the filing date, and concluded that both designs share the rectangular form and three-layer construction with dark outer wafer layers and white filling. With average designer freedom for milk snacks, the differences in length and the additional dark central filling do not alter the overall impression — the latter is perceived as a flavour variant.
• ›The appeal is dismissed; the RCD lacks individual character vis-à-vis D5; the holder bears costs.

• ChairTh. M. Margellos
• RapporteurE. Fink
• MemberC. Rusconi
• RegistrarH. Dijkema

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