R1629/2017-3

• ›Design holder (appellant) argued the RCD for boots (Stiefel) had individual character over D1 (KISS boots, December 2011), contending the designer's freedom was limited by functional requirements of winter boots, that colour differences (warm brown tones in D1 vs. grey in the RCD), different number of eyelets (six vs. four), and additional design features such as an oval black inlay and sole design created a distinctly different overall impression; the holder also disputed likelihood of confusion with the TECNICA GROUP Moon Boot trade mark.
• ›The invalidity applicant maintained that designer freedom for winter boots is unlimited as demonstrated by the wide variety of boot designs on the market, and that both designs share the same fundamental features — suede upper with short shaft, cross-lacing, furry interior and elliptical sole — creating the same overall impression; it submitted usage evidence for the Moon Boot trade mark.
• ›The Board confirmed disclosure of D1 via the blog post of December 2011; found designer freedom for winter boots to be high; analysed the designs in detail and concluded that differences in colour, eyelet count and sole design were insufficient to produce a different overall impression given the many shared dominant features (cross-lacing, suede material, fur-lined short shaft with straight edge, elliptical sole, dark cord-like laces wrapped twice around the ankle).
• ›The appeal was dismissed: the RCD lacks individual character versus D1; the Article 25(1)(e) ground and the Article 6 EUTMa proof-of-use request did not need to be examined; the holder bears the invalidity and appeal costs.

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

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