The General Court have issued an important procedural decision supporting one of EUIPO's tougher rules.  In Case T-16/16 Mast-Jägermeister v EUIPO (beakers), the famed maker of undrinkable liqueurs filed design containing a picture of a beaker, with a bottle also present.  The same day, the Examiner responded with an Examination Report objecting that bottles and beakers fell into different classes, and requesting the applicant divide (and, of course, pay another fee).  At this point, had the applicant done what the Examiner told them, they could have got something registered.  They chose, however, to argue and if the Court has painted the full picture their arguments were contradictory.  They asked to register the existing pictures as "Drinking beakers as receptacles for a bottle which is part of those beakers", but also argued by telephone that they were not in fact seeking protection for the bottles as such.  

At this point, the Examiner could be forgiven for not knowing whether they wanted to register just the glass or the combination of the glass and bottle.  The next Examination Report therefore requested that the pictures be amended to eliminate the bottle.  So far, fair enough - except that the Examiner withheld a filing date until the satisfactory representations were filed.  This situation arises not infrequently, and my own experience is that Examiners can often be persuaded to retain the original filing date.

However, the applicant appealed.  Their argument, which I think is correct, is that the rules refusing a filing date come into play only when you can't see any design clearly in the representations as filed, not as here when you can clearly see one or more but can't tell precisely which is claimed.  The Board of Appeal disagreed (in decision R 1842/2015 3), and, to cut to the chase, so did the General Court.  To quote the judgment,

"... the applicant’s interpretation  ..., pursuant to which that provision applies solely to designs where only the quality of the representation is mediocre, is manifestly contrary to the system in which the registration of designs was conceived ... The latter regulation states ... that the design must, inter alia, be ‘of a quality permitting all the details of the matter for which protection is sought to be clearly distinguished’.  That phrase refers to the requirement inherent in any registration, that is, to enable third parties to determine with clarity and precision all the details of the design for which protection is sought (see, to that effect and by analogy, ... Sieckmann, C 273/00, ... and CIPA C 307/10... [ the IPTranslator case - cits omitted] ).  Thus, imprecise representations would not enable third parties to determine unequivocally the matter to be protected by the design under consideration."

This is a stiff test to meet.  The effect will be to require a high standard of the representations filed, not merely in terms of technical quality but also in terms of selection of content - loss of filing date for a design can have serious consequences, including loss of priority and (if the design has been prior disclosed) possible loss of the benefit of a grace period and consequent invalidity.  The moral is - don't argue with the Examiner, re-file as soon as possible.