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Wednesday, 18 April 2012

Heartache in Alicante - Find out what OHIM refuses


It has just come to the attention of the IPKat that the OHIM has (apparently very recently) now begun to publish information about Registered Community Design applications that have been refused.

The information can be accessed here.

For some time, the OHIM has published "Decisions of the Office", namely invalidity decisions and decisions of the Boards of Appeal. (Our dear readers may recall that these are periodically summarised in the Marques reports, reported for example here). The "Refused Designs" section has been added to these two categories.

The only information given in each case is the reason for refusal, and the design itself is not shown. The Regulation does not envisage publication of designs before acceptance. Therefore, the OHIM does not routinely publish designs if they are refused. Furthermore, if the designs were published, it may destroy their novelty, or create unregistered Community design rights. Therefore, the OHIM is not at liberty to publish them of its own accord.  Nevertheless, seeing the grounds of refusal and relative frequency of each will be a great help to practitioners.

Which is the real animal?
OHIM does not conduct examination on substantive grounds of novelty or individual character. Therefore, most of the grounds of refusal are mundane procedural matters to do with the number, quality, or type of representations, or that the representations do not relate to the same design.

The IPKat was hoping to see refusals based on designs which are contrary to public policy or morality, but alas so far no such decisions are listed.

The most amusing reason for refusal found was "Not a Community Design as the representation shows a real animal". Was the applicant sending a snapshot of their pet, Merpel wonders.

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