CLASS 99
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WEDNESDAY, 19 MAY 2010
Community Designs - Disclosures outside the EU
Alicante News carries an item on the appeal decision in case R 9/2008-3, the Holey Soles v Crocs appeal on the infamous yet enormously successful plastic sandals. Regular readers will recall that the US ITC decision of non-infringement on the parallel US design was overturned by the CAFC following Egyptian Goddess. However, the European issues are significantly different, since the EU design (RCD 000257001-0001) could not take advantage of the earliest US priority dates, so that intervening sales in the US had taken place more than one year before the priority date claimed - specifically, exhibiting and selling at an International Boat Show in Florida, selling some thousands in Colorado, and running a website featuring pictures of the product.
Although the decision is not yet on the website, it appears that the Board held these disclosures were anticipating, and upheld the revocation of the design: in their view:
"The test is whether the sales could have reasonably become known to the relevant circles in the Community. And the answer is, in the Board's estimation, in the affirmative. The launch of a new product on the marketplace always attracts attention from the public at large, the press and the business circles. This sort of news circulates instantly and easily in the Internet era.”
With that in mind, European design law looks much like an "absolute novelty" regime, tempered only for the smallest or most obscure of disclosures - though, of course, the one year grace period usually gives plenty of time to file after marketing.
Is this the end of the design line? Crocs have a habit of appealing (though not to this writer!) so perhaps the case will get to Court yet. We will watch this space for you. Posted by: David Musker @ 17.43
Tags: crocs, disclosure, us,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA125
Community Designs - Disclosures outside the EU
Although the decision is not yet on the website, it appears that the Board held these disclosures were anticipating, and upheld the revocation of the design: in their view:
"The test is whether the sales could have reasonably become known to the relevant circles in the Community. And the answer is, in the Board's estimation, in the affirmative. The launch of a new product on the marketplace always attracts attention from the public at large, the press and the business circles. This sort of news circulates instantly and easily in the Internet era.”
With that in mind, European design law looks much like an "absolute novelty" regime, tempered only for the smallest or most obscure of disclosures - though, of course, the one year grace period usually gives plenty of time to file after marketing.
Is this the end of the design line? Crocs have a habit of appealing (though not to this writer!) so perhaps the case will get to Court yet. We will watch this space for you. Posted by: David Musker @ 17.43
Tags: crocs, disclosure, us,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA125
MARQUES does not guarantee the accuracy of the information in this blog. The views are those of the individual contributors and do not necessarily reflect those of MARQUES. Seek professional advice before action on any information included here.
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