Invalidity appeal · Board of Appeal · 2019-03-22
R1283/2018-3
Contested design: 002575290-0001
Outcome
The Board dismisses the appeal, orders the invalidity applicant to bear all fees and costs, and fixes the amount payable to the design holder at EUR 900.
Show verbatim operative text
Dismisses the appeal; Orders the invalidity applicant to bear the fees and costs incurred by the design holder; Fixes the amount of fees and costs to be paid by the invalidity applicant to the design holder with respect to the invalidity proceedings and appeal proceedings at EUR 900.
CostsApplicant ordered to pay costs of €900
Parties
Applicant · invalidity challenger
H&H Sports Protection S.rl.via PDF extraction
Italy (IT)
Via Provinciale Lucchese n. 599/E, 51034 Serravalle Pistoise (PT), Italy
Represented by
Luigi Goglia
Holder · RCD owner
100% Speedlab, LLCvia PDF extraction
United States (US)
205 16th Street, San Diego 92101, United States of America
Represented by
Prior art cited (9)
Goggles/goggle lenses for sport (off-road/motocross)
US patent application No 208/189 838 (published 14 August 2008) · United States Patent and Trademark Office · disclosed 2008-08-14
Goggles design published 31 July 2007
RCD No 759 907-0002 · Community Design Bulletin / EUIPO · disclosed 2007-07-31
Goggles design published 8 September 2009
RCD No 1 597 428-0001 · Community Design Bulletin / EUIPO · disclosed 2009-09-08
Goggles design published 25 July 2013
RCD No 2 278 416-0002 · Community Design Bulletin / EUIPO · disclosed 2013-07-25
Goggles designs from Oakley Inc. (off-road/motocross)
Oakley Inc. motocross catalogue 2011 · Oakley Inc. catalogue; www.freshfarm.it · disclosed 2011-01-01
Goggles designs from Oakley Inc. (off-road/motocross)
Oakley Inc. motocross catalogue 2013 · Oakley Inc. catalogue · disclosed 2013-01-01
Goggles designs
Bollè catalogue, Revel Atomic · Bollè catalogue
Goggles design — not prior art as publication date (26 August 2014) is after priority date (13 May 2014)
US Design patent No D711,960 (filed 24 October 2013; date of patent 26 August 2014) · United States Patent and Trademark Office · disclosed 2014-08-26
New prior designs submitted after the invalidity application — inadmissible
Various designs submitted on 16 October 2017
Legal grounds invoked
Argument summary
- ›Invalidity applicant (appellant) appealed rejection of its invalidity application for an off-road/motocross goggles design (RCD 2 575 290-0001 with US priority 13 May 2014), arguing: (i) new prior designs submitted on 16 October 2017 should be admitted; (ii) US design patent D711,960 should be counted as prior art; (iii) the comparison with the main prior design (US patent 208/189 838) was erroneous; and (iv) the contested RCD reproduced a standard frame already widely known, thus lacking individual character.
- ›Design holder (respondent) did not file appeal observations; at first instance it argued its design had distinctive features (upper central prominence, nose profile) and that in a crowded field even modest differences would be noticed by the informed user.
- ›The Board confirmed the new prior designs submitted on 16 October 2017 were correctly excluded as inadmissible — they were not included in the original invalidity application and no justification was given for late filing. US design patent D711,960's publication date (26 August 2014) was after the priority date (13 May 2014), so it was not prior art.
- ›On novelty and individual character, the Board endorsed the contested decision in full: the RCD and the US patent prior design differed in shape of the glass (more rounded prior vs. straight-lined RCD), depth of nose cut-out, and prominence of the top line — differences not merely technical. The RCD therefore had novelty and individual character; in a crowded field the informed user would be more sensitive to small differences.
- ›Appeal dismissed; EUR 900 in costs (EUR 400 for invalidity proceedings + EUR 500 for appeal) fixed against the invalidity applicant.
Deciding panel
- ChairTh. M. Margellos
- RapporteurH. Salmi
- MemberE. Fink
- Registrarp.o. I. Romero Conrad
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 ↗ |
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