000010721

• ›The invalidity applicant argued that the contested floor-profile design lacked novelty and individual character over six earlier German design registrations, especially D2, and said the visible edge profile was technically constrained while the base profile should be disregarded as invisible in use.
• ›The holder disputed that the base profile was always hidden in normal use and argued that the contested design differed sufficiently from the earlier designs despite functional constraints on the spacing and regularity of the cut-outs.
• ›The Invalidity Division found D2 had been validly disclosed before filing, rejected the applicant's claim that Article 4(2) excluded the base profile from protection, and held that designer freedom was only partly constrained.
• ›Comparing the contested design with D2, the Division found only minor differences in the cut-outs and holes, while the overall geometry, proportions and rectangular edge profile created the same overall impression on the informed user.
• ›The application was upheld because the contested design lacked individual character under Article 6(1)(b), and the holder was ordered to pay EUR 750 in costs.

• MemberGailė SAKALAITĖ
• MemberNatascha GALPERIN
• MemberStephan HANNE

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