000128198

• ›Applicant argued lack of novelty and individual character: the contested ballpoint pen design (filed 09/08/2019) is identical or very similar to the 'Zakazany Długopis' (Forbidden Pen) pen design visible in a YouTube video uploaded on 29/11/2016, sharing the same overall cylindrical form, handle mechanism, double circular carving and pointy end.
• ›Holder claimed to be the creator of 'Zakazany Długopis', argued that earlier online publications were subsequently edited to add the ® symbol, and that the design was not disclosed prior to registration; it submitted various evidence but did not provide concrete proof of manipulation of the YouTube publication.
• ›The Division found the YouTube snapshot a valid disclosure under Article 7(1) CDR (platform, date, and design clearly identifiable), rejected the holder's abstract claim of post-hoc editing as unsubstantiated, and found both designs share an identical or very similar overall configuration with only minor secondary differences; designer freedom was at least average.
• ›Application upheld; the contested pen design lacks individual character under Article 6(1)(b) CDR; the holder bears EUR 750 in costs.

• MemberEnrico D'ERRICO
• MemberGailé SAKALAITE-ORLOVSKIENE
• MemberRasa BARAKAUSKIENĖ

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