On 28.07.2014 a Bulgarian company, represented by the team of IP Consulting, filed an Application for a declaration of invalidity. It contested a Registered Community Design of a washing sponge (shown below).
The grounds were based on one hand on the Article 25(1)(b)CDR, that the RCD does not fulfill the requirements for protection pursuant to the Article 4 to 9 CDR, since it lacks novelty and individual character. (“A design shall be considered to be new if no identical design has been made available to the public before the date of filing of the application for registration of the design for which protection is claimed, or, if priority is claimed, the date of priority”).
And on the other hand based on the Article 25(1)(d) that the contested RCD is in conflict with the prior design rights of three RCDs – washing sponges (shown below).
Within the particular time limit the owner of the contested Registered Community Design filled observations that differences in the designs occurred. They were namely in the number of the layers of the sponges. Furthermore, there are differences in surfaces and even in geometric shapes and angles. It was claimed that this is enough the challenged design to be distinguished by the informed user.
The Conclusion of the Decision of the EUIPO of the Invalidity Division is that the contested Registered Community Design is declared invalid on the grounds of the Article 25(1)(d) CDR. Also, the Invalidity Division stated the RCD is in conflict with the prior design right. Pursuant to Article 70(1) CDR and Article 79(1) CDIR, the Holder bear the fees and costs of the Applicant.
