Invalidity appeal · Board of Appeal · 2019-09-05
R1947/2018-3
Contested design: 003030881-0001
Outcome
The appeal is dismissed and the design holder is ordered to bear the invalidity applicant's fees and costs.
Show verbatim operative text
1. Dismisses the appeal; 2. Orders the design holder to bear the fees and costs incurred by the invalidity applicant.
CostsHolder ordered to pay costs
Parties
Applicant · invalidity challenger
Hajdú Gabona Zrt.via PDF extraction
Hungary (HU)
Széchenyi u. 13., 4025 Debrecen, Hungary
Holder · RCD owner
DN Trade Group Ltd.via PDF extraction
Bulgaria (BG)
109-A "Tsar Osvoboditel" Road, Office 41, 9000 VARNA, Bulgaria
Represented by
Prior art cited (4)
Silhouette of a man riding a horse holding a lasso-shaped ribbon; registered for flours in Class 30; published 1 March 2004
Hungarian trade mark registration No 176 859 · Hungarian Intellectual Property Office Bulletin · disclosed 2004-03-01
Trade mark for goods in Class 30 and services in Class 35; published 29 March 2016 (application) and 15 August 2016 (registration)
Hungarian trade mark registration No 218 863 · Hungarian Intellectual Property Office Bulletin · disclosed 2016-03-29
Prior designs commercialised in Hungary and Romania before filing date, appearing in Hungarian promotional brochures CBA (2010), Privȧt (2010), forrás (2011)
Hungarian promotional brochures
Copyright-protected graphic work depicting a horse-herder and a stylised Nine Holed Bridge of Hortobágy with inscription 'HAJDÚ FINOM LISZT'
Hungarian trade mark registration No 176 859
Legal grounds invoked
Argument summary
- ›The design holder (DN Trade Group) appealed the Invalidity Division's decision invalidating RCD No 3 030 881-0001 (ornamentation for boxes/packaging) for lack of individual character; it argued the Invalidity Division's assessment was subjective and the informed user (a trained professional) would perceive the differences between the contested RCD and the prior Hungarian trade mark No 176 859.
- ›The invalidity applicant (Hajdú Gabona) defended the first-instance finding, noting that the designer's broad freedom means even small similarities are decisive and that the contested RCD produces the same overall impression as the prior design.
- ›The Board noted a procedural error in the contested decision (wrong trade mark image used) but decided the case itself on the merits; it found the prior design was properly disclosed and that the dominant similar elements (horse-and-rider silhouette and tricoloured lasso) outweigh the differences, leaving the informed user with the same overall impression.
- ›The Board dismissed the appeal, confirming invalidity and ordering the design holder to bear all costs.
Deciding panel
- ChairTh. M. Margellos
- MemberM. Bra
- MemberH. Salmi
- 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 ↗ |