R0294/2019-3

• ›The invalidity applicant (appellant, TrekStor) claimed that the contested RCD (protective cover/keyboard for iPad) constituted an unauthorised use of copyright-protected drawings originally created by Mr Jia in July/August 2010, which were transferred via a chain of assignments to TrekStor; it argued the Invalidity Division erred in rejecting the application for lack of evidence and in not hearing witnesses.
• ›The design holder (respondent, ZAGG) argued that no copyright-protected work predating the RCD filing date was identified or evidenced; the assignment agreement of 5 July 2011 post-dates the RCD's priority date, the agreement refers to design rights not copyright, and German courts had already ruled the drawings do not enjoy copyright protection; additionally ZAGG argued it independently developed the RCD and its designer Mr Grengler was the sole creator.
• ›The Board found the invalidity applicant failed on all three required elements: (i) it did not identify a copyright-protected work (the actual drawings were never submitted, the agreement post-dates the RCD and is ambiguous), (ii) it did not establish protection under the German Copyright Act (no evidence of where the work was first published, relevant to Section 121 UrhG), and (iii) it did not prove the chain of copyright title from Mr Jia to TrekStor (German copyright is non-transferable except by inheritance).
• ›The appeal was dismissed; the contested Invalidity Division decision rejecting the invalidity application was confirmed.

• ChairTh. M. Margellos
• RapporteurH. Salmi
• MemberC. Rusconi
• RegistrarR. Vidal

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