Invalidity appeal · Board of Appeal · 2019-11-21
R0113/2019-3
Contested design: 002703918-0002
Outcome
The appeal is dismissed; the design holder is ordered to bear the invalidity applicant's costs.
Show verbatim operative text
1. Dismisses the appeal; 2. Orders the design holder to bear the costs incurred by the invalidity applicant.
CostsHolder ordered to pay costs
Parties
Applicant · invalidity challenger
VELIKOV & CO OODvia PDF extraction
Bulgaria (BG)
Han Krum Str., No.7, 7060 Slivo pole, Bulgaria
Represented by
Holder · RCD owner
ALL NUTS SRLvia PDF extraction
Romania (RO)
Str. Lanternei nr.89 Sector 2, Bucuresti, Romania
Represented by
Ráducu Turtoi
Prior art cited (1)
Figurative EUTM 'СОЛЕЙ Слънчоглед печени ядки' (sunflower seeds packaging design), filed for Classes 29, 30 and 31
EUTM No 11 257 334 · EUIPO EUTM register (application published) · disclosed 2012-11-20
Legal grounds invoked
Argument summary
- ›The design holder (appellant) argued that the contested RCD (sunflower seeds packaging) and the prior EUTM design produced different overall impressions: the RCD depicted Romania's map against its flag colours while the prior design had a different square shape and darker background; also claimed the designer's freedom was limited by packaging regulations and the owner's earlier rights.
- ›The invalidity applicant maintained that the conflicting designs coincide in their rectangular shape, sunflower and sunflower seeds imagery, logo position and colour scheme, that designer freedom was unlimited, and that the design holder had acted in bad faith.
- ›The Board confirmed that EUTM No 11 257 334 (published November 2012) constituted a valid prior design under Article 7(1) CDR; found the designer's freedom very wide; and held the designs produced the same overall impression due to dominant shared elements (sunflower on seeds, central logo, spray-paint background), with the differences (Romania map, 'fără sare' text, stamp) being minor and less striking.
- ›The appeal was dismissed; bad faith ground rejected as outside the exhaustive list of invalidity grounds in Article 25(1) CDR; design holder ordered to bear costs.
Deciding panel
- ChairTh. M. Margellos
- RapporteurC. Negro
- MemberE. Fink
- RegistrarN. Granado Carpenter
Decision files
| Language | Type | Source link |
|---|---|---|
| deDeutsch (de) | machine translated | Download original from EUIPO ↗ |
| 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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