Invalidity appeal · Board of Appeal · 2019-12-11

R2272/2018-3

Contested design: 002634741-0002

CDRAppellant: holder

Outcome

Appeal dismissed

The appeal is dismissed and the design holder is ordered to bear the invalidity applicant's costs in the appeal proceedings.

Show verbatim operative text

1. Dismisses the appeal; 2. Orders the design holder to bear the invalidity applicant's costs in the appeal proceedings.

CostsHolder ordered to pay costs

Applicant · invalidity challenger

Grzegorz Raczkiewicz and "BRASSICA" Raczkiewicz & Reicher Spółka Jawnavia PDF extraction

Poland (PL)

Ul.Dmowskiego 25/31/1, 97300 Piotrków Trybunalski; ul.Ojcowska 15, 32-089 Wielka Wieś - Bębło, Poland

Represented by

Holder · RCD owner

Coffee Service Sp. z o.o.via PDF extraction

Poland (PL)

Niemcewicza 26/U7, 02-306 Warszawa, Poland

Represented by

Registered RCD

stand-up pouch (Doypack-style) with transparent window, registered and published as Community Design on 28 November 2014

RCD No 2 421 495-0002 · EUIPO Community Designs Bulletin · disclosed 2014-11-28

Article 25(1)(b)Article 4(1)Article 6(1)Article 7Article 5Article 63(2)Article 70(1)

›The design holder (Coffee Service) appealed the Invalidity Division's invalidation of its stand-up pouch RCD (wrapping), arguing the earlier design had not been adequately disclosed in trade, the designer's freedom was narrow for Doypack pouches, and material/texture differences (metallised foil vs brown paper) were sufficient to generate a different overall impression for an expert informed user.
›The invalidity applicant (Brassica/Raczkiewicz) requested dismissal, arguing the designer's freedom for 'wrapping' was practically unlimited, that the only visible difference was material aspect, and that the design holder's own evidence (magazine advertisement from 2012) showed it had pre-disclosed its own RCD.
›The Board upheld the invalidation: the earlier RCD had been duly disclosed by EUIPO Bulletin publication on 28 November 2014 (before the 16 February 2015 filing); the designer's freedom for food packaging is broad; the contested RCD reproduced the same rectangular stand-up shape with elliptical base, transparent window, sealing line and valve — the material aspect difference was a functional variation insufficient to alter the overall impression. The Board additionally noted the design holder had itself pre-disclosed the design in a Polish magazine in February 2012.
›The appeal is dismissed; the invalidation is confirmed.

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