OFFICE FOR HARMONIZATION IN THE INTERNAL MARKET (TRADE MARKS AND DESIGNS) DECISION OF

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1 OFFICE FOR HARMONIZATION IN THE INTERNAL MARKET (TRADE MARKS AND DESIGNS) DEPARTMENT FOR DESIGNS AND REGISTER - INVALIDITY DIVISION DECISION OF THE INVALIDITY DIVISION OF 10/06/2013 IN THE PROCEEDINGS FOR A DECLARATION OF INVALIDITY OF A REGISTERED COMMUNITY DESIGN File number ICD 8914 Community design Language of proceedings English Applicant Ing. Milan Bříštéla Václava Kulíška 1224 CZ Uherské Hradiště Mařatice Representative of Robert Nešpůrek the Applicant Týn 1049/3 CZ Praha Holder ROKOSPOL a.s. Krakovská 1346/15 CZ Praha, Nové Město 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) has taken the following decision on 10/06/2013: 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 (in the following: the RCD ) has been registered in the name of the Holder with the date of filing of 18/03/2012. In the contested RCD, the indication of products reads aircraft (part of -). The design is represented in the following views published in the Community Designs Bulletin: ( (2) On 20/09/2012, the Applicant filed a request for a declaration of invalidity (in the following: the Application ) contesting the validity of the RCD. The fee for the Application was paid via bank transfer. (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 Article 25(1)(c), (d), (e), (f) or (g) CDR. (4) In the reasoned statement, the Applicant explains that after having left the company of the Holder in 2009, he became the executive director of the company BRM Aero s.r.o. where he developed a new airplane under the trade name BRISTELL. This airplane included a cockpit frame which was designed ( prior design ) by the company TechProAviation s.r.o. in The BRISTELL airplane was disclosed to the public in April 2011 at the fair AERO 2011 in Friedrichshafen (Germany). The Applicant claims that the prior design is identical to the RCD. Therefore, RCD must be declared invalid due to lack of novelty and lack of individual character. (5) As evidence in support of the reasoned statement, the Applicant provides inter alias the following documents: 1 Council Regulation (EC) No 6/2002 on Community designs 2

3 - An extract from the website where under the section Friedrichshafen 2012 the following photo is shown: - An affidavit from the company TechProAviation s.r.o. wherein its director certifies that they had a contract with the company BRM Aero s.r.o. to design a cockpit frame and a frame glass for the BRISTELL airplane as shown in the following pictures: - Copies of various invoice notes for the delivery of BRISTELL airplanes from BRM Aero s.r.o. to addresses in various countries in the EU dated between June and December (6) The Holder did not submit any observations in response to the Application. (7) For further details to the facts, evidence and arguments submitted by the Applicant reference is made to the documents on file. 3

4 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 in 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. B. Substantiation B.1 Evidence of Disclosure (9) The affidavit from the company TechProAviation s.r.o is supported by other documents and hence sufficient evidence for the fact that the BRISTELL airplane including the prior design has been made available to the public in Consequently, the prior design is considered to be disclosed in the meaning of Article 7(1) CDR before the date of filing of the contested RCD. B.2 Novelty (10) According to Article 5 CDR the 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. (11) The prior design is identical to the contested RCD in all features. Therefore, the RCD is not new in the meaning of Article 5(1) CDR. C. Conclusion (12) The facts and evidence provided by the Applicant support the claim of lack of novelty. Therefore, the RCD is declared invalid on the ground of invalidity of Article 25(1)(b) CDR. III. COSTS (13) Pursuant to Articles 70(1) CDR and 79(1) CDIR, the Holder shall bear the fees and the costs of the Applicant. (14) The costs to be reimbursed by the Holder to the Applicant are fixed to the amount of 750 Euro, including 400 Euro for the costs of representation and 350 Euro reimbursement of the invalidity fee. 2 Commission Regulation (EC) No 2245/2002 of 21 October 2002 implementing Council Regulation (EC) No 6/2002 on Community designs 4

5 IV. RIGHT TO APPEAL (15) 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 this 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 (Art. 57 CDR). THE INVALIDITY DIVISION Martin Schlötelburg Jakub Pinkowski Ingeborg Mendieta Vetter 5