email_pop up_pop
X

EMAIL US

X
up_inner

UNITARY PATENT

In 2012 Member States and the European Parliament agreed on the "patent package" - a legislative initiative consisting of two...

find out more

TABLES
Case:     R 250/2007-3    

The registered design was opposed on the basis of prior art and prior copyright. The latter claim was rejected, as the similarity was at the idea level only.
As regards the prior art, the informed user was one who habitually buys tables to furnish their own house and to use it. The buyer is "informed" in the sense of knowing what is on the market. A "user" is therefore a person who buys a table for their own use, but the informed user is a person who choosers a table after having visited several furniture stores, consulted reviews of furniture, and searched on the internet, having informed himself about the product. The informed user is therefore the end user, not a designer or an architect, as claimed by the applicant for invalidity. In this case, an informed user who was choosing a product would consider the shape of the legs, since support was one of the important functions of a table. The design was upheld.
This decision is an important one, which has been followed as regards the "informed user" in numerous later Board of Appeal decisions.

Meat Foodstuffs
Case:     R 1214-1215/2006-3    

The application concerned a hamburger steak having a ridged surface.  The design was based on the basis of, amongst other things, packaging which is the subject of French Trade mark No. 3214568. The design was invalidated at first instance; in their decision, the invalidation division referred to the website of the trade mark proprietor, which showed the same picture as the registered trade mark but in colour. On appeal, this was criticised by the proprietor.
The proprietor had submitted information from a food nutritionist. However, the Appeal Board commented that a nutritionist was not a suitable person to be the informed user. " As the use of a foodstuff necessarily entails its consumption, the informed user is someone who regularly consumes meat products and especially hamburgers and is informed about their ingredients, how they are cooked and served, as well as their overall appearance."
In this case, "since the informed user's fundamental concerns are to factors such as taste, cooking time and percentage of meat content, s/he will not consider the precise extent to which the grooves, the ridges, and the stripes on the surface of the registered community design differ" (from the prior art).
Accordingly, the design was invalid.


Device For the presentation of spectacles
Case:     R 187/2007-3     

An opponent successfully filed invalidity proceedings against the applicant. The first instance had rejected the opponent's lack of novelty allegation but denied individual character.
The opponent claimed that the "informed user" was an optician/owner of a spectacle business, and claimed that there was an extensive design freedom, with the exception of the relative importance of front holder, clamp and counter bracket to one another. Further, they claimed that the general impression given by the designs illustrated in their submissions comprised the essential features of the applicant's design and that the different number of laterally arranged longitudinal grooves and differences in the formation of the front holder and the clamp were insignificant as differences regarding the interior cavity of the profile carrier were not evident from the outside.
The Board held that the applicant had failed to prove individual character in the sense of Article 7 CDR. The Board was of the opinion that there was no special restriction to the freedom of design and that the informed user would not generally be technically experienced or particularly interested in the technical design of the spectacle presentation devices. The Board agreed with the findings of the Invalidity Division in that the differences of the designs were not of a kind that that the informed user would be capable of discerning, such differences only being relevant when evident to the viewer. The different form of the interior body of the profile carriers was therefore disregarded. The remaining characteristics were not deemed to be those that the informed user would notice. In particular, oval or heart-shaped frontal bodies would be indistinguishable from a frontal view.
The case indicates a low-level "informed user", paying attention only to significant features.


INTERNAL Combustion Engines
Case:     R 1337/2006-3,  R 1380/2006-3    

The engine of the first contested design was apparently for lawnmowers. That of the second design was intended for air compressors, power generators, pumps, chipper/shredders, lawnmowers and go-carts. They were opposed by Honda on the basis of their earlier US Design No: D367070. The invalidity division upheld the design, on the basis of a different overall impression of the upper part of the engine, this being the part that remains visible during normal use.
The Appeal Board held that "the informed user is someone who wants to use a lawnmower to cut the grass in his garden, needs for example to buy one and has become "informed" on the subject by browsing through catalogues of lawnmowers; visiting specialised stores, garden centres; downloading information from the internet etc" (following R250/2007-3-Tables). The Appeal Board agreed that the informed user was more influenced by the upper part rather than "the dozens of details that, no doubt, characterise mechanical devices." Thus, the two designs produced the same overall impression "if seen from above, they globally present the same visual aspect." The first instance decision was reversed, on the basis that it had been "the result of an excessively detailed analysis of the various components." The invalidity division had got lost in detail and "lost the broader perspective of the "overall impression". In the Board's view, "it must be underlined that lawnmowers are technical tools and factors such as power source, ease of operation, ability to dispose of mowing grass, possible hazards, etc are of primary importance for the informed user.  Therefore informed users are more likely to be impressed by the overall aspect of the product...rather than by relatively insignificant details...". Although the engine in this case was a technical product, there was still a high degree of freedom in where different parts were located.
This decision is on appeal to the Court of First Instance, where a different result may apply.


SLOT Machines
Case:     R 241/2007-3     

The Appeal Board held that the informed user is not the manufacture or the retailer, but a player who knows this type of equipment very well (not an occasional infrequent user). The designer of slot machines was held to have relatively wide freedom, and accordingly the design was revoked.


COMMUNICATION Equipment
Case:     R 1437/2006-3     

The contested design related to a loudspeaker telephone unit for conference calls. The applicant for invalidation argued that it was similar to the "Concentus" unit made by Philips and registered as an international design. At first instance, OHIM upheld the design arguing that the informed user knew certain parts of the design to be constrained by functionality, and so would concentrate on their precise form, seeing differences in them. On appeal, the applicant argued that the informed user would not be an expert in the field, and that there was high degree of variation in other units on the market compared to close similarities between the design and the Philips Concentus unit.
The Appeal Board described the informed user as "anyone who regularly attends conferences or formal meetings at conference unit with a microphone on the table in front of them." Having set this relatively undemanding level, they then held the differences were too small to be observed except on close examination. The Appeal Board disagreed with the first instance on the degree of freedom; the designer had a wide degree of freedom in this case, and therefore the similarities were significant. The design was accordingly revoked. This decision is, however, on appeal to the court of first instance, where a different result might obtain.


Animal Foodstuff
Case:     R 1391/2006-3    

The contested design was a dog chew in the form of a rod having a five-pointed starfish cross-section. Mars, the applicant for invalidation, applied to invalidate on the basis of their earlier dog chew design having a cruciform (four pronged) cross section. They alleged that the design proprietor had initially launched a dog chew with four prongs and, after they complained, added a fifth prong.
At first instance the design was upheld, holding that the difference in cross section was significant; " while this might not make a big difference to the end user, the informed user is well aware of this fundamental difference".
The Appeal Board held that "the informed user ... is a dog owner who buys dog food stuffs and treats and as becoming formed on the subject by visiting pet stores (or pet departments in supermarkets), downloading information from the internet, etc "(following R250/2007-3)
They held that the invalidity division was wrong to concentrate exclusively on the cross section, as the elongate shape was also significant. The proprietor could have selected any one of a number of different shapes and " could have distanced itself much more from the earlier product than by merely adding a prong to its design." Accordingly, the design was revoked. 


Cosmetics Bottles
Case:     R 115/2007-3     

The Cancellation Division invalidated an RCD for a squeezy cosmetics bottle with indented sides and a flip-top cap on the basis of a Spanish registered design, finding that they created the same overall impression on the informed user. On appeal, the Board overturned the decision, finding that the informed user was the cosmetics industry, who would be aware of small differences between cosmetic bottles and containers used by their competitors. Such an informed user would therefore notice that the neck of the Spanish design was grooved, while that of the RCD was smooth, and that the earlier Spanish design was rectilinear in body, while that of the RCD was slightly curved. The Board held that the remaining Spanish designs and trade marks cited by the applicant for invalidity were even less similar to the RCD, and there was therefore no point in remitting the case back to the Cancellation Division for reconsideration of those rights; the application for invalidation was unfounded.


TABLES
Case:     R 250/2007-3   

The registered design was opposed on the basis of prior art and prior copyright. The latter claim was rejected, as the similarity was at the idea level only.
As regards the prior art, the informed user was one who habitually buys tables to furnish their own house and to use it. The buyer is “informed” in the sense of knowing what is on the market. A “user” is therefore a person who buys a table for their own use, but the informed user is a person who choosers a table after having visited several furniture stores, consulted reviews of furniture, and searched on the internet, having informed himself about the product. The informed user is therefore the end user, not a designer or an architect, as claimed by the applicant for invalidity. In this case, an informed user who was choosing a product would consider the shape of the legs, since support was one of the important functions of a table. The design was upheld.
This decision is an important one, which has been followed as regards the “informed user” in numerous later Board of Appeal decisions.


Meat Foodstuffs
Case:     R 1214-1215/2006-3   

The application concerned a hamburger steak having a ridged surface.  The design was based on the basis of, amongst other things, packaging which is the subject of French Trade mark No. 3214568. The design was invalidated at first instance; in their decision, the invalidation division referred to the website of the trade mark proprietor, which showed the same picture as the registered trade mark but in colour. On appeal, this was criticised by the proprietor.
The proprietor had submitted information from a food nutritionist. However, the Appeal Board commented that a nutritionist was not a suitable person to be the informed user. “ As the use of a foodstuff necessarily entails its consumption, the informed user is someone who regularly consumes meat products and especially hamburgers and is informed about their ingredients, how they are cooked and served, as well as their overall appearance.”
In this case, “since the informed user’s fundamental concerns are to factors such as taste, cooking time and percentage of meat content, s/he will not consider the precise extent to which the grooves, the ridges, and the stripes on the surface of the registered community design differ” (from the prior art).
Accordingly, the design was invalid.


Device For the presentation of spectacles
Case:     R 187/2007-3    

An opponent successfully filed invalidity proceedings against the applicant. The first instance had rejected the opponent’s lack of novelty allegation but denied individual character.
The opponent claimed that the “informed user” was an optician/owner of a spectacle business, and claimed that there was an extensive design freedom, with the exception of the relative importance of front holder, clamp and counter bracket to one another. Further, they claimed that the general impression given by the designs illustrated in their submissions comprised the essential features of the applicant’s design and that the different number of laterally arranged longitudinal grooves and differences in the formation of the front holder and the clamp were insignificant as differences regarding the interior cavity of the profile carrier were not evident from the outside.
The Board held that the applicant had failed to prove individual character in the sense of Article 7 CDR. The Board was of the opinion that there was no special restriction to the freedom of design and that the informed user would not generally be technically experienced or particularly interested in the technical design of the spectacle presentation devices. The Board agreed with the findings of the Invalidity Division in that the differences of the designs were not of a kind that that the informed user would be capable of discerning, such differences only being relevant when evident to the viewer. The different form of the interior body of the profile carriers was therefore disregarded. The remaining characteristics were not deemed to be those that the informed user would notice. In particular, oval or heart-shaped frontal bodies would be indistinguishable from a frontal view.
The case indicates a low-level “informed user”, paying attention only to significant features.


INTERNAL Combustion Engines
Case:     R 1337/2006-3, R 1380/2006-3   

The engine of the first contested design was apparently for lawnmowers. That of the second design was intended for air compressors, power generators, pumps, chipper/shredders, lawnmowers and go-carts. They were opposed by Honda on the basis of their earlier US Design No: D367070. The invalidity division upheld the design, on the basis of a different overall impression of the upper part of the engine, this being the part that remains visible during normal use.
The Appeal Board held that “the informed user is someone who wants to use a lawnmower to cut the grass in his garden, needs for example to buy one and has become “informed” on the subject by browsing through catalogues of lawnmowers; visiting specialised stores, garden centres; downloading information from the internet etc” (following R250/2007-3-Tables). The Appeal Board agreed that the informed user was more influenced by the upper part rather than “the dozens of details that, no doubt, characterise mechanical devices.” Thus, the two designs produced the same overall impression “if seen from above, they globally present the same visual aspect.” The first instance decision was reversed, on the basis that it had been “the result of an excessively detailed analysis of the various components.” The invalidity division had got lost in detail and “lost the broader perspective of the “overall impression”. In the Board’s view, “it must be underlined that lawnmowers are technical tools and factors such as power source, ease of operation, ability to dispose of mowing grass, possible hazards, etc are of primary importance for the informed user.  Therefore informed users are more likely to be impressed by the overall aspect of the product…rather than by relatively insignificant details…”. Although the engine in this case was a technical product, there was still a high degree of freedom in where different parts were located.
This decision is on appeal to the Court of First Instance, where a different result may apply.


SLOT Machines
Case:     R 241/2007-3    

The Appeal Board held that the informed user is not the manufacture or the retailer, but a player who knows this type of equipment very well (not an occasional infrequent user). The designer of slot machines was held to have relatively wide freedom, and accordingly the design was revoked.


TOY Cars
Case: R 84/2007-3

The design was a toy car, and the prior art was a Formula 1 racing car. According to the Board, the informed user was identified by reference to the indication of product. Here the product was a toy so the informed user was a child, typically a boy. The proprietor suggested it might be an adult collector, but that would not be a "user" - the indication of product was not for a collectable model but a toy.
For an informed user of toys, the design gave the same overall impression as the prior art car; both are nearly identical versions of the Ferrari single-seater used in Formula 1 races.
The informed user of toy automobiles will not examine meticulously the tens of details which distinguishes a single-seater of one vintage year from that of the previous one year, as might a collector, or a fan of Formula 1, but would be pleased by a general vision of the product.
This case highlights the apparent importance of the indication of product; a different indication might have saved this design, it seems.


INVERTOR Generators
Case:     R 860/2007-3     

At first instance Honda were successful in getting the design declared invalid. On appeal, the proprietor argued that if there was at least one difference in a "characteristic feature" the design should be declared to have individual character, citing an Austrian Supreme Court decision 4 Ob 177/05s dated 14 February 2006 (Rolling Boards).
The Board held that, "According to the case-law of this Board, the informed user is identified on the basis of the class of products within which, according to the application for registration, the design itself is intended to be incorporated. In the present case, the holder declared in the application that the design concerned an ‘inverter generator'. The informed user against whom individual character of the contested RCD should be measured is therefore whoever habitually purchases such an item and puts it to its intended use and has become informed on the subject by browsing through catalogues of such generators, visiting the relevant stores, downloading information from the internet, etc. (see, by analogy, decision of the Third Board of Appeal of 18 September 2007 in case R 250/2007-3 -‘tavoli'). This can be, for example, the owner of a mobile home or a caravan who needs a generator to be independent from power supply systems when he does not want to park on an official campsite. The informed user is generally not technically experienced or particularly interested in the technical design of inverter generators. He will therefore not pay attention to every detail of the device. Instead, he will undertake an overall view, including, inter alia, the attractiveness of the design and the practicability of the device.
The overall shape, configuration and general appearance of the designs is very similar. The differences do not significantly affect the overall impression produced by the devices since they are details which, although not insignificant, relate to what are essentially marginal elements of the two products. A close examination - going much further than the general comparison required by the regulation - would be needed before the informed user could distinguish the two devices.  
It must be underlined that the two designs concern products having a high technical content. Inverted generators, internal-combustion engines, air compressors, power generators and similar appliances are products for which technical characteristics and safety considerations - ease of use, protection against hazards - are of such importance that the informed user's overall impression of the aspect of the product is more likely to be influenced by the general appearance (arrangement of component parts, size, overall shape of components) than by relatively immaterial details (see by analogy, decision of the Third Board of Appeal of 8 October 2007 in case R 1380/2006-3 -‘Internal combustion engine').
... the designer's degree of freedom in developing the design ... is relatively wide. ... it is difficult to see any reason why the respondent's design needs to resemble the appearance of the earlier design to such an extent. ... It follows that the appellant could have distanced itself much more from the prior design, rather than by merely incorporating differences, which is what the changes it has mentioned to its design amount to."
This case has been highlighted as important by OHIM in its Alicante News 6/08 publication. The Office said: "The decision of the Boards is not only doing away with the reputation of the European design legislation as an easy access to design protection, but also testifies to the strength of a Community design when it comes to enforcement because the legal provision defining the scope of protection uses exactly the same terms as the legal definition of individual character. ... Minor variations cannot take a design out of the scope of protection. ...Community design protection was never easy to obtain and likewise never easy to circumvent."
It makes an interesting comparison with the UK Court of Appeal decision in Procter & Gamble v. Reckitt Benckiser (reviewed below) - the Board of Appeal appears to assume both a lower level of knowledge and a lower level of attentiveness in the "informed user", and OHIM see no difference between the tests for individual character and scope (as the UK Court suggested might exist).
Some other issues of interest are the role of the indication of product, and the nature of the comparison in the case of a "technical" product.


COSMETIC Bottle
Case:     R 103/2007-3     

DB Design GmbH successfully invalidated Canamasas' RCD for a cosmetics container which resembled a squat-looking tube, on the basis that it created the same overall impression as an earlier U.S. design. Canamasas appealed, arguing there was no proof that the U.S. design was known in the relevant specialist circles in the Community. The Appeal Board found that the relevant specialist circle was made up of cosmetic companies who would fill such bottles with cosmetic products, and that such companies were well aware of the general shape of bottles and containers in use for cosmetics in other countries, including the U.S. The invalidation was upheld.


CLOSET Door runners
Case:     R 1482/2006-3      

Mecalde 2 S.A. applied to invalidate an RCD for a closet door runner, alleging that it lacked novelty because it was identical to a runner that Mecalde had advertised and sold prior to the RCD filing date of 18 March 2005. Mecalde relied on a catalogue from 2002 and invoices from 2004 to prove the disclosure. The RCD was cancelled, and the Appeal Board upheld the cancellation, affirming that the combination of a catalogue with images of the earlier design and invoices referring to the catalogue number were sufficient to prove the disclosure. The Board corrected OHIM's erroneous statement (ultimately irrelevant to either decision) that disclosure of a prior design in the 12 months preceding the filing of the RCD could be discounted as within the grace period, since the relevant period for determining novelty was the filing or priority date of the RCD. There was no need for a catalogue to have been legally deposited under Spanish law for it to be taken into account as evidencing disclosure, and the mere fact that the evidence emanated from the applicant for invalidation did not render it untrustworthy, taking into account the persuasive combination of documents filed. The Board dismissed the appeal.


Decorative Designs and borders
Case:     R 1401 - 6, 1410 -             11/2006-3      

Venilia SA applied to invalidate a number of RCDs for decorative designs and borders filed on 27 July 2005, citing lack of novelty based on a catalogue apparently emanating from the proprietor itself dated 2001, which featured the designs. The Cancellation Division rejected the action, finding that the catalogue was insufficient proof of disclosure since it did not bear a more precise date than simply the year, was not submitted in the original, and was not proved actually to have been circulated outside the proprietor's company. The Appeal Board overturned the ruling, however, holding that the copy in question appeared to be a full copy of the catalogue, and there was nothing to suggest that any pages from the original had been omitted or replaced. Catalogues did not typically contain dates more precise than a year and possibly a season (eg, "Spring 2001"), and it would be unrealistic to expect more than that in this case. Finally, the catalogue resembled a document intended for external distribution, and the Board found no reason to suspect that it was not in fact circulated in the manner evidently intended. Held that the designs had been disclosed in 2001, four years before the RCDs were filed, and the latter were therefore invalid for lack of novelty.


Mixers
Case:     R 377/2006-3      

The opponent filed invalidity proceedings against an proprietor on the grounds of lack of novelty and individual character. They were rejected at first instance by OHIM as their evidence (three English and Chinese documents ) was not submitted in the "language of proceedings" translations were not filed within two months.
Additionally, a further supporting document was deemed not to constitute sworn evidence in the sense of the Regulation. The document in question supported a prior disclosure claim and alleged exports of certain products embodying the design to Europe, commencing in December 2002. This date was deemed insufficient for determining an exact date for which the alleged disclosure took place in the sense of Article 7. Moreover, without further evidence, OHIM could not ascertain any further information about the distribution of these products to specific addressees.
The opponent appealed on the grounds that a translation of the three foreign language documents was unnecessary as they mostly concerned representations and dates. They alleged that it was obviously derivable that the opposed design was already disclosed before the application. As regards the validity of the other document, the opponent insisted that the Office was obliged to take this into account since it comprised a certificate and an indisputable seal of the manufacturer, and confirmed the product in question was exported to Europe from December 2002. The opponent argued that the rejected evidence documents including a manufacturer's catalogue, clearly disclosed product information identical to and disclosed a year before the RCD. It was not a question of whether the products were actually exported to Europe, rather that the design was disclosed to the European market through such catalogues or the like.
The opponent further argued that parts of the RCD were the same as those of the prior disclosure, and had generally the same function and conveyed the same overall impression.
The proprietor argued that the opponent had not discharged their burden of proof since it was not clear if at least one of the products alleged to have been produced in China had even reached Europe, let alone in which European outlets and to whom they had been sold. Every Chinese manufacturer would generally always have such information regarding delivery volumes and addresses, yet no such proof had been produced by the opponent . Further, the opponent's evidence to be formally deficient in that the relevant contours and forms of the products were unrecognisable in the reproductions produced and, in any case, the documents failed to disclose in combination the RCD. Finally the proprietor argued that the representation in the first evidence document referred to a different model number to that cited in the manufacturer's declaration and the reproduction of the corresponding model number submitted by the opponent was of too poor quality to analyse.
The Appeal Board agreed with the proprietor and rejected the appeal since the opponent had failed to sufficiently prove the lack of novelty or distinctiveness at the time of the opposition. However, the Board stated that the invalidity action could have been successful, had they conclusively proved the actual disclosure thereof prior to the RCD application date - some of the opponent's documents resembled or were even identical to the opposed RCD. The Board further indicated that, for example, even such a disclosure at an important Chinese trade fair would have been sufficient to potentially prove knowledge of the product in the relevant European industrial circles. The dates in the evidence documents failed to prove disclosure thereof as they referred to, for example, development time. The Board considered the manufacturer's statement to be the most persuasive evidence in support of a lack of novelty regarding the RCD, however, since the reproductions referred to in this document were of such poor quality, the integrity of the evidence was deemed to be minimal. The Board therefore rejected the appeal.
This decision illustrates the importance of preparing full and detailed evidence in a prior use case. Many representatives are unfamiliar with formal evidence, perhaps because it may not be required in their domestic procedure.


Writing Implement
Case:     R 1352/20006-3     

This case concerned a well-known type of highlighter pen, which is the subject of a German trade mark registration DE30045470. The contested design had the same basic shape, with the addition of a number of shape features.
The applicant for invalidation (and owner of the earlier trade mark) claimed that the trade mark had been reproduced, with additional features. OHIM held the design invalid at first instance. The proprietor argued that the appeal proceedings should be stayed before a final decision of the German court in parallel trade mark infringement proceedings (the higher district court of Frankfurt had already injuncted the proprietor from selling products in Germany on the basis of unfair competition law). Further, the proprietor argued that the Appeal Board should consider whether the earlier trade mark was valid (arguing that it would do so if this were a trade mark invalidation action); it would be wrong to force the proprietor to attempt to undertake expensive national revocation proceedings.
Dealing with the validity issue, the board noted that national trade marks, like community trade marks, have a presumption of validity, and held that it was not competent to hold a registered trade mark invalid. The proprietor would, indeed, have to go the national court or registry to invalidate the trade mark.
As regards the similarity between the earlier mark and later design, following R 609/2006-3 (Midas Logo) "the distinctive sign does not have to be reproduced identically in the contested RCD. It is sufficient that the distinctive design is incorporated as such in the subsequent design."  The appeal was dismissed.


CONTAINERS
Case:     R 137, 267/2007-3      

In these cases, it appears that the applicant wished to claim a cardboard strip for retaining multiple bottles; one of the drawings showed the strip where as another showed it with bottles marked with a trade mark. The proprietor of the earlier trade mark applied to invalidate. The design was cancelled by the invalidity division at first instance.
The Appeal Board upheld the OHIM decision. The design included the earlier trade mark and did not disclaim it. Further, the present design could be applied to all products and packaging, and was "obviously intended to be used in the course of trade". It could be applied to the products covered by the earlier trade mark registration, and hence the good should be considered identical. Under the circumstances, it was "liable to jeopardise the guarantee of origin which constitutes the essential function ...of the trade mark". Accordingly the design was revoked.
This decision may seem harsh. However, in view of the comments at first instance, it is amazing that the proprietor did not disclaim the earlier trade mark; their failure to do so does raise the possibility did indeed intend to make use of the earlier trade mark.


Loudspeakers
Case:     R 64/2007-3      

The applicant for invalidation filed evidence showing that the proprietor, a Danish audio engineer, had been involved in the design of a product.  The applicant for invalidation contended that the proprietor had designed only the loudspeakers, and not the external housing, and that he had therefore taken their design. The proprietor agreed that he had been involved in the design.
The proprietor objected that OHIM could not invalidate a design for wrongful ownership unless this had already been established by a court of a member state. The Appeal Board confirmed that they have no jurisdiction to decide on ownership issues, and were not a "court" for these purposes, such jurisdiction falling to the national courts.
The applicant for invalidation also argued that the design was in breach of their copyright and invalid for this reason also. The Appeal Board, however, held that a registered community design should only be declared invalid under these grounds "in the clearest of cases", and in particular, held that this ground should not be used to circumvent the jurisdiction of the national courts on entitlement matters, where the true argument was that the applicant for invalidation was entitled to the design. Further, in this case, the applicant for invalidation had not proved that there was any work protected by EU copyright laws.