On September 11, 2024, the Third Board of Appeal of the EUIPO dismissed an appeal regarding a request for invalidation of Community Design No. 5 809 746-0001. The design in question pertains to the construction of a portable sauna. The request was filed by Ecosauna Project OÜ (hereinafter, the applicant), who argued that the design lacked novelty and individual character pursuant to Articles 5 and 6 of the Community Design Regulation (CDR), based on Article 25(1)(b) and Article 4 of the CDR.

In the first instance, the Invalidity Division declared the contested design invalid, arguing that the designer’s freedom had not been proven, and that prior designs with a similar overall impression had been established.

The holder of the design appealed to the Board, arguing that the Facebook screenshots showing designs allegedly prior to those requested by the applicant were insufficient evidence to prove the existence of previous designs with characteristics similar to those of the contested design, for the following reasons:

  1. The images were of low quality, insufficient to identify the product’s characteristics.
  2. The perspectives of the images did not allow for a proper comparison of the designs.
  3. The screenshots provided could have been altered, deleted, or modified, making the evidence and the link insufficient proof of prior design existence.

In summary, the holder argued that the images did not constitute disclosure within the meaning of Article 7(1) of the CDR. In response, the applicant for invalidation claimed that the dates had not been altered and that, moreover, the design holders had no interest in revoking the design.

The appeal was upheld by the Board, which reversed the earlier decision, determining that documents proving the existence of prior designs must be submitted. In this case, the Board of Appeal considered that the link provided was not sufficient evidence to demonstrate the disclosure of the prior design, as additional evidence should have been provided that could not be modified, deleted, or restricted, given that the Board was unable to determine if the link had been altered or removed.

Since no evidence beyond the screenshots was provided to demonstrate the prior disclosure, the existence of a prior design within the meaning of Article 7(1) of the CDR was not proven, which is a conditio sine qua non for the application of Articles 5 and 6 of the CDR. Therefore, the request for invalidation was dismissed, without the need to examine the novelty or individual character of the contested design.

Decision of the Third Board of Appeal of the EUIPO of September 11, 2024, in case R 5/2024-3, Community Design No. 5 809 746-0001