OFFICE FOR HARMONIZATION IN THE INTERNAL MARKET (TRADE MARKS AND DESIGNS) DECISION OF. English. Red Bull GmbH Am Brunnen Fuschl am See Austria

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1 OFFICE FOR HARMONIZATION IN THE INTERNAL MARKET (TRADE MARKS AND DESIGNS) OPERATIONS DEPARTMENT DESIGNS SERVICE DECISION OF THE INVALIDITY DIVISION OF 26/06/2013 IN THE PROCEEDINGS FOR A DECLARATION OF INVALIDITY OF A REGISTERED COMMUNITY DESIGN FILE NUMBER ICD 8933 COMMUNITY DESIGN LANGUAGE OF PROCEEDINGS English APPLICANT Red Bull GmbH Am Brunnen Fuschl am See Austria REPRESENTATIVE OF THE APPLICANT Hogan Lovells Avenida Maisonnave Alicante Spain HOLDER S.C. Intermark s.r.l. Stei - Str. Lucian Blaga nr Oradea Rumania REPRESENTATIVE OF THE HOLDER S.B.G. & K. ÜGYVÉDI IRODA Andrássy út Budapest Hungary Avenida de Europa, 4 E Alicante Spain Tel Fax

2 The Invalidity Division, composed of Martin Schlötelburg (rapporteur), Jakub Pinkowski (member) and Ingeborg Mendieta Vetter (member) took the following decision on 26/06/2013: 1. The registered Community design nº is declared invalid. 2. The Holder shall bear the costs of the Applicant. I. FACTS, EVIDENCE AND ARGUMENTS (1) The Community design nº (hereinafter the RCD ) has been registered in the name of the Holder with a date of filing of 02/11/2010. In the RCD the indication of products reads packaging. The RCD was published in the Community Designs Bulletin with the following views: (2) On 29/09/2012, the Applicant filed an application for a declaration of invalidity ( the Application ). 2

3 (3) Using the Office s form the Applicant indicated as grounds for invalidity challenged Community design does not fulfil the requirements of Articles 4 to 9 CDR 1 and other(s) according to Article 25(1)(c), (d), (e), (f), (g) CDR. (4) As evidence, the Applicant provides inter alias the following documents: - An affidavit of Mr. Jorge Casals and employee of the Applicant stating that several cans shown in attached pictures were bought in Romania, Slovakia and the Czech Republic in the years 2008 and The affidavit includes inter alias the following pictures: 1 Council Regulation (EC) No 6/2002 on Community designs 3

4 - Copies of cashier checks indicating the dates of sale and the name of the sold products, namely Rienergy. The checks are dated between September 2008 and October A print-out of the website where under the date of 18 August 2008 an article is published including the following picture: (5) In the reasoned statement the Applicant claims that cans in the design of the contested RCD were sold in the European Union more than 12 months before the date of filing of the RCD and therefore the RCD lacks novelty. (6) In response to the Application, the Holder claims that the evidence provided by the Applicant is not sufficient to prove the disclosure of a prior design identical with the RCD. According to the Holder, the evidence relies solely on the affidavit of Mr. Casals which was obviously created specifically to serve as evidence in the context of the invalidity proceedings. The pictures included in the affidavit lack any evidentiary value because they do not have an indication when the pictures were taken. As regards the pictures showing the top and the bottom of the cans, the Holders argues that there is no link whatsoever between these pictures and the pictures of the Rienergy products. Concerning the cashier checks, the Holder observes that they are not in the language of proceedings and therefore should be ignored. Furthermore, the Holder claims that they are of poor quality which makes it impossible to verify their dates, as well as their exact objects. As regards the article on the website the Applicant claims that there is no proof whatsoever regarding the accuracy and the reliability of the information contained in said article. (7) For further details to the facts, evidence and arguments submitted by the parties, reference is made to the documents on file. 4

5 II. GROUNDS OF THE DECISION A. Admissibility (8) The indication of the grounds for invalidity in the Application is a statement of the grounds on which the Application is based within the meaning of Article 28(1)(b)(i) CDIR 2. Furthermore, the Application complies with Article 28(1)(b)(vi) CDIR, since the Application contains an indication of the facts, evidence and arguments submitted in support of those grounds. The other requirements of Article 28(1) CDIR are fulfilled as well. The Application is therefore admissible. B. Substantiation B.1 Disclosure (9) The objections of the Holder as regards the value and the quality of the evidence are unjustified and absurd. The dates when the pictures of the affidavit were taken, is of no importance. What matters are the dates of the photographed objects, namely the Rienergy products. These dates can be clearly read in the pictures showing the products from below. The cashier checks, which indicate the name of the products and the dates in a clearly readable quality, confirm the dates of the products shown in the pictures. These dates are given in Arabic numbers and hence do not need a translation into the language of proceedings. Likewise, the product is indicated by its name, namely Rienergy, which is the same in all the languages of the EU. As regards the article in the website its date is confirmed by the fact that it fits in the chronological order in which all the articles on this website are listed. (10) The Applicant has provided overwhelming evidence that cans in the design of the RCD has been disclosed more than 12 months prior to the date of filing of the contested RCD and hence made available to the public within the meaning of Article 7(1) CDR. B.2 Novelty (11) According to Article 5 CDR, the contested RCD lacks novelty when an identical design has been made available to the public prior to the date of filing of the RCD. Designs shall be deemed to be identical if their features differ only in immaterial details. (12) All the features of the contested RCD were known prior to its date of filing. The design of the RCD was fully disclosed several years before the RCD was filed and registered. 2 Commission Regulation (EC) No 2245/2002 of 21 October 2002 implementing Council Regulation (EC) No. 6/2002 on Community designs. 5

6 C. Conclusion (13) The evidence provided by the Applicant supports the ground of Article 25(1)(b) CDR. The contested RCD is declared invalid due to lack of novelty. III. COSTS (14) Pursuant to Article 70(1) CDR and Article 79(1) CDIR, the Holder shall bear the costs of the Applicant. (15) The costs to be reimbursed by the Holder to the Applicant are fixed to the amount of 750 Euro, composed of 400 Euro for the costs of representation and 350 Euro for the reimbursement of the invalidity fee. IV. RIGHT TO APPEAL (16) An appeal shall lie from the present decision. Notice of appeal must be filed at the Office within two months after the date of notification of that decision. The notice is deemed to have been filed only when the fee for appeal has been paid. Within four months after the date of notification of the decision, a written statement setting out the grounds of appeal must be filed (Article 57 CDR). THE INVALIDITY DIVISION Martin Schlötelburg Jakub Pinkowski Ingeborg Mendieta Vetter 6