Invalidity appeal · Board of Appeal · 2018-10-04

R1615/2017-3

Contested design: 002125435-0001

CDRAppellant: holder

Outcome

Appeal dismissed

The appeal is dismissed and the design holder is ordered to bear the invalidity applicant's costs.

Show verbatim operative text

1. Dismisses the appeal; 2. Orders the design holder to bear the invalidity applicant's cost.

CostsHolder ordered to pay costs

Applicant · invalidity challenger

METAR Sp. z o.o.via PDF extraction

Poland (PL)

ul. Gaudiego 12, 44-109 Gliwice, Poland

Represented by

Łukasz Korga

Holder · RCD owner

Glimarpol Sp. z o.o.via PDF extraction

Poland (PL)

ul. Bernardyńska 1, 41-902 Bytom, Poland

Represented by

Wojciech Leszek Zieliński

Prior useAttachment 1

pneumatic rock drill, instructions manual dated 02.08.2010, manufacturer Shenyang Construction Ltd, importer Glimarpol

Model No. 7655D · EU marketplace / instructions manual · disclosed 2010-08-02

Prior useAttachment 14

pneumatic rock drill, instructions manual dated 01.09.2009, importer Glimarpol in Poland

Model No. YT-24 · EU marketplace / instructions manual · disclosed 2009-09-01

Web disclosureAttachment 6

screenshot from Shenyang Construction Ltd (now Atlas Copco) website mentioning model 7655 won 1983 International Rock Drill Contest

Shenyang Construction Ltd / Atlas Copco website · disclosed 1983-01-01

Article 25(1)(b)Article 5Article 6Article 7

›The design holder (appellant) argued that its RCD for a pneumatic rock drill differs significantly from earlier designs YT-24 and 7655 and that the informed user — a discerning specialist — would perceive those differences; it also cited differences in technical specifications such as weight, air consumption, and torque.
›The invalidity applicant (respondent) argued that the differences are purely technical and do not affect appearance, and contested the Invalidity Division's finding of limited designer freedom, asserting rock drills can have innovative designs.
›The Board confirmed that the informed user is a mining professional with average designer freedom; it upheld the finding that both designs produce the same overall impression since the only visible differences (square vs rounded handle; colour) are insufficient — colour cannot distinguish because the earlier design was photographed in black and white and the product is sold in blue.
›The appeal was dismissed; the declaration of invalidity of RCD No 2 125 435-0001 was upheld on the ground of lack of individual character over prior design YT-24 under Article 6 CDR.

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ititaliano (it)	machine translated	Download original from EUIPO ↗
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