Aiko Multi Concept Ltd. filed an application for cancellation before the Bulgarian Patent Office against industrial design with reg.No. 4521. The contested industrial design is owned by Genomaks Ltd., represented by the team of IP Consulting.
The cancellation action is based on art. 29, par. 1, p. 1 and p. 3 in connection with art. 11, par. 1, and art. 12 par. 2 of the Law on Industrial Designs, namely:
• Art. 29, par. 1 – The registration shall be deleted at request by any person when the design:
p.1 -has been registered in contradiction with Art. 3 or Art. 11, para 1;
p.3 – is identical in the sense of Art. 12, para 2 to a design that has become generally available in any way before the date of submission of the application, respectively before the priority date, anywhere in the world, or is identical to a design in an application preceding the date of the application for registration, respectively the priority date, that has been registered nationally or internationally or as a Community Design;
• Art. 11, par. 1 – Registered shall be a design that is new and original.
• Art. 12, par.2 – The designs shall be considered identical if their peculiarities differ only in insignificant elements.
The Patent office rejected the application for cancellation and confirmed the position of IP Consulting that the applicant failed to present adequate evidences in the case. The cancellation applicant took the case to Sofia City Administrative Court. After considering the evidence presented The Court confirmed the Bulgarian Patent Office decision and rejected the appeal.
Aiko Multi Concept Ltd. filed an appeal to the Supreme Administrative Court. IP Consulitng sustained the position that the evidence collected in the case confirms the lawfulness of BPO’s conclusion, as well as the fact that the process industrial designs are new and original.
Grounds of Supreme Administrative Court:
“It should be pointed out that the accessibility of a previous industrial design cannot be based on probabilities and assumptions, but must be established on the basis of specific objective facts, which prove the actual disclosure at a moment prior the registration or filing of the contested design.
This is what the appelant has not proven during the case”.
“The appelant has not duly proved the existence of an identical within the meaning of Art. 12, para. 2 of the Law on Designs, which to have become publicly available before the date of the application for registration of the process industrial design. It should be noted that by filing the request and its supplementing, the appelant has not clearly and unequivocally identified which designs he considered to be identical to the process one and which have become publicly available before the date of the application for registration of the process design. The use of different trade names – its and different manufacturers / traders, in the absence of relevant evidence in the case of their visible appearance, their identity and a relevant reliable date, make the appelant’s request for deletion of the process design unproven.”
The above conclusion of the Supreme Administrative Court finally approves the validity of Genomaks Ltd. industrial design reg.No. 4521, represented by the team of IP Consulting and rejects the appelant’s request for cancellation.
