R0437/2019-3

• ›The invalidity applicant (Lafat komerc) appealed rejection of its invalidity application based on Article 25(1)(d)(iii), (f) and (b) CDR. On appeal it submitted English translations of its earlier Bosnian evidence and a WIPO Hague Express excerpt showing international registration DM/102 595 (claiming priority from Bosnian design BAD17706A, filing date 30 May 2017).
• ›The design holder (BIODOM 27) argued the appeal-stage evidence was belated and inadmissible; that the Bosnian priority jurisdiction has no effect in the EU; that the international registration was filed and published after the contested RCD's filing date; and that copyright ownership had not been proven.
• ›The Board exercised its discretion under Article 63(2) CDR to admit the new evidence as it was supplementary rather than entirely new, directly relevant to the outcome, and systematically notified to both parties. It found that international registration DM/102 595, claiming as priority Bosnian design BAD17706A (filed 30 May 2017 — prior to the contested RCD's 24 August 2017 filing date) and published after the filing date, satisfies the conditions of Article 25(1)(d)(iii) CDR. The two designs are visually identical in all aspects (same semicircular-plus-six-sided shape with circular holes in identical size, position and arrangement).
• ›The Board annulled the first-instance decision and declared the contested RCD invalid under Article 25(1)(d)(iii) CDR; no need to examine the other grounds.

• ChairTh. M. Margellos
• RapporteurH. Salmi
• MemberE. Fink
• Registrarp.o. R. Vidal

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