Invalidity appeal · Board of Appeal · 2021-02-15
R2068/2019-3
Contested design: 000127204-0001
Outcome
The contested decision is annulled, Community design No 127 204-0001 is declared invalid, and the design holder must pay the invalidity applicant's costs and fees fixed at EUR 2,050.
Show verbatim operative text
1. Annuls the contested decision and declares Community design No 127 204-0001 invalid; 2. Orders the design holder to bear the costs and fees incurred by the invalidity applicant in the invalidity and appeal proceedings; 3. Fixes the costs to be paid by the design holder to the invalidity applicant for the invalidity and appeal proceedings at EUR 2 050.
CostsHolder ordered to pay costs of €2,050
Parties
Applicant · invalidity challenger
Zaun Limitedvia PDF extraction
United Kingdom (GB)
Steel Drive, Wolverhampton WV10 9ED, United Kingdom
Represented by
Holder · RCD owner
BETAFENCE HOLDING BVBAvia PDF extraction
Belgium (BE)
3Square Village / Rijvisschestraat 126, 9052 Gent, Belgium
Represented by
Prior art cited (6)
security fence post patent application relied on for technical-function analysis
EP 1 564 351 B1 · European patent publication · disclosed 2007-03-28
catalogue showing prior security fence posts
PulseSecure Product Catalogue · PulseSecure Product Catalogue · disclosed 2003-12-01
steel fence post designs shown in web archive and catalogue
www.fenceonline.com / Master Halco catalogue · Wayback Machine and Master Halco catalogue · disclosed 2003-05-04
metal fence post patent publication
US2001/0005010 · United States patent publication · disclosed 2001-06-28
fence post and modular mesh partition wall kit
US2003/0209701 · United States patent publication · disclosed 2003-11-13
installed security fence post supported by invoices to Harper Chalice Group
photographs and invoices from Fairmile Fencing Limited · disclosed 2001-12-10
Legal grounds invoked
Argument summary
- ›The invalidity applicant appealed, arguing that the contested fence-post design was solely dictated by technical function and, alternatively, lacked novelty and individual character over earlier catalogues, patents and prior-use evidence.
- ›The design holder argued that the patent evidence did not show the same product, that aesthetic considerations also played a role, and that the cited earlier designs did not deprive the RCD of novelty or individual character.
- ›The Board found the visible features of the post were chosen exclusively to achieve technical effects in a security-fence system, and the evidence did not credibly show that non-technical design considerations shaped the appearance.
- ›The appeal was allowed; the first-instance rejection was annulled, the RCD declared invalid under Article 8(1) CDR, and EUR 2,050 in fees and costs were fixed against the design holder.
Deciding panel
- ChairTh. M. Margellos
- RapporteurC. Negro
- MemberM. Bra
- Registrarp.o. APAOLAZA ALM,Eva
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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