Invalidity appeal · Board of Appeal · 2023-06-12
R2068/2019-3
Contested design: 000127204-0001
Outcome
The appeal is dismissed and the invalidity applicant must bear the design holder's costs and fees in both instances.
Show verbatim operative text
1. Dismisses the appeal; 2. Orders the invalidity applicant to bear the costs and fees incurred by the design holder in the invalidity and appeal proceedings.
CostsApplicant ordered to pay costs
Parties
Applicant · invalidity challenger
Zaun Limitedvia PDF extraction
United Kingdom (GB)
Steel Drive, WV10 9ED Wolverhampton, United Kingdom
Represented by
Holder · RCD owner
Praesidiad Holding BVBAvia PDF extraction
Belgium (BE)
Blokkestraat 34B, 8550 Zwevegem, Belgium
Represented by
Prior art cited (6)
European patent application for a fence post / security fence post
EP 1 564 351 B1 · European patent publication · disclosed 2007-03-28
PulseSecure Product Catalogue showing 'Standard Post 3.0 m Long PS/100' and 'Strain "T" Post 3m long PS 100/S'
PulseSecure Product Catalogue
Wayback Machine screenshots and related catalogue material for steel posts for wood fence systems
www.fenceonline.com · Wayback Machine / fenceonline.com · disclosed 2003-05-04
metal fence post
US2001/0005010 · US patent publication · disclosed 2001-06-28
Fence post and a kit for erecting a modular mesh partition wall
US2003/0209701 · US patent publication · disclosed 2003-11-13
images of installed security fencing and invoices issued by Fairmile Fencing Limited to Harper Chalice Group
invoices / installation evidence · disclosed 2001-12-10
Legal grounds invoked
Argument summary
- ›The invalidity applicant argued that the fence-post design was invalid because its appearance was solely dictated by technical function and, as part of a complex product, its relevant features would not remain visible in use.
- ›The design holder replied with expert evidence and sector material showing that visual and aesthetic considerations also influenced the flange, open channel, and U-shaped profile of security fence posts.
- ›Applying the DOCERAM approach, the Board found reliable expert evidence that at least two of the contested design's three identified features were not chosen solely for technical reasons.
- ›Because not all features were exclusively technically dictated, Article 8(1) did not apply and the appeal was dismissed.
Deciding panel
- ChairG. Humphreys
- RapporteurS. Rizzo
- MemberA. Pohlmann
- RegistrarH. Dijkema
Decision files
| Language | Type | Source link |
|---|---|---|
| deDeutsch (de) | machine translated | Download original from EUIPO ↗ |
| enEnglish | original | Download original from EUIPO ↗ |
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