Invalidity appeal · Board of Appeal · 2019-03-13
R1917/2017-3
Contested design: 002421495-0002
Outcome
The Board annuls the first-instance decision, declares the contested RCD invalid for lack of individual character, and orders the design holder to bear all costs.
Show verbatim operative text
1. Annuls the contested decision; 2. Declares the invalidity of the contested RCD; 3. Orders the design holder to bear the invalidity applicant's costs and fees in the invalidity and appeal proceedings.
CostsHolder ordered to pay costs
Parties
Applicant · invalidity challenger
Coffee Service Sp. z o.o.via PDF extraction
Poland (PL)
Niemcewicza 26/U7, 02-306 Warszawa, Poland
Represented by
Holder · RCD owner
Grzegorz Raczkiewiczvia PDF extraction
Poland (PL)
UL.DMOWSKIEGO 25/31/1, 97-300 PIOTRKÓW TRYBUNALSKI, Poland
Represented by
Prior art cited (4)
Stand-up pouch 'doypack window pap40/opp30' displayed on invalidity applicant's website
Internet Archive extract dated 10 January 2013 (Attachment 3); also dated 10 April 2011 and 14 May 2012 (Attachments 2-3) · Invalidity applicant's website (Internet Archive) · disclosed 2011-01-01
Stand-up pouch 'PAP40/OPP030' listed on invalidity applicant's website
Internet Archive extract dated 1 December 2011 (Attachment 12) · Invalidity applicant's website (Internet Archive) · disclosed 2011-12-01
Stand-up pouch 'DOYPACK WINDOW NEW TYPE' purchased by client on 31 October 2012
Client declaration and invoice · disclosed 2012-10-31
Doypack pouche exhibited at National Packaging Competition PakStar 2010
PakStar competition documents (Attachments 4-5) · disclosed 2010-01-01
Legal grounds invoked
Argument summary
- ›Applicant (appellant) argued that D1 (website image from 2011), D2 (Internet Archive extract), D3 (client declaration) and D4 (PakStar competition) sufficiently disclosed the earlier stand-up pouch design; the Invalidity Division erred in finding the images of poor quality; an enlarged image of D1 filed with the appeal statement was a better-resolution version of the same design, not a new design.
- ›Design holder (respondent) maintained that D1, D3 and D4 were 'obscure' and inconsistent with each other, thus could not be treated as three representations of one design; the prior pouches differed from the contested RCD in shape, colour and 'applied solutions'.
- ›The Board found D1 sufficiently clear to appreciate the earlier design; the enlarged image was admissible as a higher-resolution version of the same D1 image. D1 was published on the applicant's website in 2011, before the RCD's filing date, and thus disclosed under Article 7 CDR.
- ›On individual character, the Board found the RCD produced a 'déjà vu' impression: both designs showed a non-rigid brown container with transparent window, closure device and elliptical stand-up base; lid colour difference (dark vs light) and the presence of a valve in the RCD were insufficient to produce different overall impressions.
- ›Appeal upheld; first-instance decision annulled; RCD declared invalid; design holder bears all costs.
Deciding panel
- ChairTh. M. Margellos
- RapporteurC. Rusconi
- MemberC. Bartos
- RegistrarH. Dijkema
Decision files
| Language | Type | Source link |
|---|---|---|
| esespañol (es) | machine translated | Download original from EUIPO ↗ |
| frfrançais (fr) | machine translated | Download original from EUIPO ↗ |
| ititaliano (it) | machine translated | Download original from EUIPO ↗ |
| enEnglish | original | Download original from EUIPO ↗ |