R1398/2017-3

• ›Invalidity applicant (appellant) argued that the correct prior art for comparison was imagen A (photograph of the actual cast product), not imagen B (a simplified render in the 2011 catalogue used by the Invalidity Division), since imagen A was more faithful to the product actually manufactured and sold; it claimed the contested design (vehicle coupling/bracket for refrigeration equipment) was practically identical to the prior art and thus lacked novelty and individual character.
• ›Design holder (respondent) maintained that imagen B (the welded-sheet version disclosed in 2011) was the correct prior art; the cast version (imagen A) was only manufactured from 2014 onwards and was actually the product registered as RCD No 2 523 746-0007, which was declared invalid over the holder's design; different manufacturing technologies produce different appearances.
• ›The Board noted that in a parallel case (R 1397/2017-3) concerning RCD No 2 217 588-0001, it had dismissed an identical appeal; that decision had been appealed to the General Court as T-100/19, raising identical questions of fact and law.
• ›In the interest of good administration and judicial economy, the Board opted to suspend the appeal proceedings until the General Court's judgment in T-100/19 becomes final, rather than risk conflicting decisions on identical legal questions.

• ChairTh. M. Margellos
• RapporteurC. Rusconi
• MemberH. Salmi
• Registrarp.o. I. Romero Conrad

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