Invalidity appeal · Board of Appeal · 2019-03-25
R2516/2017-3
Contested design: 002022772-0001
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 the fees in the invalidity and appeal proceedings.
CostsHolder ordered to pay costs
Parties
Applicant · invalidity challenger
PIEJŪRA, SIAvia PDF extraction
LV
"Avoti", Nīcas pagasts, Nīcas novads, LV-3473, Letonia
Represented by
Holder · RCD owner
GAMMA-A, SIAvia PDF extraction
LV
Traleru iela 30, Rīga, LV-1030, Letonia
Prior art cited (3)
CANPEEL® aluminium container with removable transparent lid, invented by O.Kleiner AG (Switzerland)
Interpack fair, Duesseldorf; O.Kleiner newsletter 'canpeel news' December 2008 · disclosed 2008-05-01
Canned sprats in CANPEEL® tin (shown in photograph)
Declaration by O.Kleiner AG and Latvian fish-tinning company
Canned sprats in CANPEEL® tin (shown in photograph)
Declaration by O.Kleiner AG and Latvian fish-tinning company
Legal grounds invoked
Argument summary
- ›Invalidity applicant (appellant) argued that earlier design 1 (CANPEEL® tin, exhibited at Interpack 2008 and published in O.Kleiner's newsletter) was properly disclosed and that the RCD reproduces the same features of appearance, producing the same overall impression.
- ›Design holder argued that new evidence was belated and that declarations came from non-impartial parties covering commercially confidential dealings; holder did not submit observations at first instance.
- ›The Board found design 1 properly disclosed via exhibition at Interpack 2008 and the business newsletter; the Invalidity Division erred in treating the visible food contents as part of the design, since the RCD protects packaging, not its contents.
- ›The Board held that the RCD reproduces all features of appearance of the earlier design (same shape, proportions, colours, transparent lid with tab) and thus lacks individual character; the contested decision was annulled and the RCD declared invalid.
Deciding panel
- ChairTh. M. Margellos
- RapporteurC. Rusconi
- MemberE. Fink
- 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 ↗ |