For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

Two of our regular Kats are currently on blogging sabbaticals. They are David Brophy and Catherine Lee.

Tuesday, 6 August 2013

Apple's Cool design registration not invalid according to OHIM

The Apple/Samsung tablet wars continue unabated, with a recent invalidity decision relating to Apple RCD no. 000181607-0001 recently posted on OHIM’s website. As readers with an interest in “cool” designs may remember, Samsung sought (and obtained) a declaration of non-infringement for three of its Galaxy tablet computers in relation to this RCD in the UK last year (see Katposts here and here).

The Apple/Samsung catfight shows no
signs of stopping.

The validity of the RCD was not in question in the UK litigation last year; according to Article 84(4) of the Community Design Regulation, “the validity of a Community design may not be put in issue in an action for a declaration of non-infringement”. In other words, during the litigation the RCD had to be treated as if it was valid.

And… it turns out this assumption was correct in the view of OHIM’s Invalidity Division, who found the grounds of invalidity presented by Samsung, including over 60 alleged prior designs, to be unfounded. The decision itself was relatively unremarkable, particularly in view of the other recent Apple tablet RCD invalidity decisions discussed here, and turned very much on the facts.

Samsung also unsuccessfully contested the validity of another of Apple’s tablet RCDs (RCD no. 0001236590-0001, decision here). So, despite the crushing blow of the non-infringement declaration obtained by Samsung in the UK, Apple can at least retain some pride that these RCDs were held to be valid by OHIM.

However, the story by no means ends here. Samsung can appeal OHIM’s Invalidity Division decisions if they so desire to OHIM's Boards of Appeal,  and, if that doesn’t go their way, they then have the General Court and, finally, the CJEU to turn to.  Invalidity at four instances. The saga continues…

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