Invalidity appeal · Board of Appeal · 2024-08-26
R2471/2023-3
Contested design: 008529499-0003
Outcome
The appeal is dismissed, and the design holder must pay the invalidity applicant’s costs and fees for the invalidity and appeal proceedings, fixed at EUR 1,250.
Show verbatim operative text
1. Dismisses the appeal; 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 amount of fees and costs to be paid by the design holder to the invalidity applicant with respect to the invalidity and appeal proceedings at EUR 1 250.
CostsHolder ordered to pay costs of €1,250
Parties
Applicant · invalidity challenger
Pars Pro Toto BVBAvia PDF extraction
Belgium (BE)
Snepkaai 5, 9000 Gent, Belgium
Represented by
Holder · RCD owner
AME Group Marcin Hernasvia PDF extraction
Poland (PL)
ul. Jaskółcza 58, 43-340 Kozy, Poland
Represented by
Prior art cited (1)
toys
RCD No 7 328 141-0001 · Community Designs Bulletin · disclosed 2019-12-16
Legal grounds invoked
Argument summary
- ›The design holder appealed, arguing the products also function as sand sifters, so designer freedom was constrained and the differing hole pattern, central circle, and diagonal lines changed the overall impression.
- ›The invalidity applicant replied that product indication does not affect protection scope, designer freedom remained broad apart from a rounded flying-disc shape and possible holes, and the differences were too minor to matter.
- ›The Board found the prior RCD had been disclosed before filing, the products were the same type of toy, and the designer retained meaningful freedom over disc shape, hole shape and arrangement, surface treatment, and decoration.
- ›It held that the shared round concave disc and multiple round holes dominated the overall impression, while the hole pattern, central-circle size, and diagonal lines were insufficiently pronounced to differentiate the designs.
- ›The Board confirmed lack of individual character under Article 6 CDR, upheld the invalidity of the contested RCD, dismissed the appeal, and ordered the design holder to pay EUR 1,250 in fees and costs.
Deciding panel
- ChairS. Stürmann
- RapporteurC. Bartos
- MemberH. Salmi
- RegistrarH. Dijkema
Decision files
| Language | Type | Source link |
|---|---|---|
| esSpanish | human translated | Download original from EUIPO ↗ |
| frFrench | human translated | Download original from EUIPO ↗ |
| deDeutsch (de) | machine translated | Download original from EUIPO ↗ |
| ititaliano (it) | machine translated | Download original from EUIPO ↗ |
| enEnglish | original | Download original from EUIPO ↗ |
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