R1070/2018-3

• ›The invalidity applicant (Bibita Group) argued on appeal that the contested RCD is in conflict with its prior international design DM/095 339 under Article 25(1)(d)(iii) CDR because both designs share a distinctive 'dumbbell' bottle shape and produce the same overall impression on the informed user; differences such as linear patterns and labels were characterised as minor accessorial details.
• ›The design holder submitted no observations at any stage; the Board noted an earlier erroneous decision (14 January 2019) that had assessed the wrong ground (Art. 25(1)(b) instead of Art. 25(1)(d)) was revoked on 30 September 2019.
• ›The Board confirmed the prior design's status under Article 25(1)(d)(iii) CDR but found the designs produce different overall impressions: the contested RCD's most eye-catching feature is its distinctive linear patterns forming octagonal shapes, entirely absent from the prior design, along with different indentations; the shared dumbbell structure has a technical function and is thus less weight-bearing for the comparison.
• ›The appeal is dismissed; the Invalidity Division correctly rejected the invalidity application.

• ChairTh. M. Margellos
• RapporteurH. Salmi
• MemberC. Negro
• RegistrarH. Dijkema

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