OHIM’s Third Board of Appeal applied a generous (and, we think, correct) approach to priority in Decision R 2230/2011-3 – Webcams, concerning RCDs 1279475-0001 and 1279475-0002 (available only in German).  The applicant had filed a set of photos of terrible quality (or perhaps OHIM’s scanning software messed up the colour balance).  To get the product aligned, they propped it up with something – a toothpick perhaps? - which was visible in views 1.3 and 1.4 as filed (the uppermost two pictures).  The pictures were the same ones used in the German priority application.

OHIM objected that there was no “neutral background”.  The applicant declined to file amended pictures because they did not want to risk their priority claim – they said their views were clear.  Without further explanation, OHIM then registered the designs omitting the two contentious views.

The applicant appealed.  The Board invited them to file cleaned-up pictures lacking the toothpicks (or whatever that support is).  They did so.  The case was allowed. - a happy ending.  The important issue is that the Board explicitly allowed the priority claim, on the basis that the design depicted was the same, even despite the significant difference in the pictures.