Editor's note: Tous, S. L. and Tous Franquicias, S. A. U. Company pair Arturo Rodrígueze hijos, S. L. and Lázaro Filing trademark and unregistered design infringement lawsuits. The dispute over an unregistered design involves an earring, Pendant and bracelet design styles. Read on for more details.

[background] Tous, S. L. and Tous Franquicias, S. A. U. company (Hereinafter referred to as "plaintiff" ) right Arturo Rodrígueze hijos, S. L. and Lázaro (Hereinafter referred to as "defendant" ) Filing trademark and unregistered design infringement lawsuits. The dispute over an unregistered design involves an earring, Pendant and bracelet design styles. The court of first instance ruled in favor of all the plaintiff's claims. subsequently, The defendant appealed against the verdict of the first instance.

[conclusion] Eu trademark court (Court of appeal) In the appellate judgment, the protection of the rights of non-registered community designs and the legal requirements for infringement litigation are discussed. In accordance with "Regulation of the Council of Europe on Community designs (The first (EC) 6/2002 No) " (Hereinafter referred to as "European Union regulation (EC) 6/2002 No" ) The first 85. 2 Article provision, The court held that the design owner (Tort plaintiff) It shall prove that its appearance design meets the legal validity requirements of novelty and uniqueness. The plaintiff shall also specify what constitutes the uniqueness of its design, That is, for ordinary users, its appearance design is different from other appearance designs that have been disclosed before. The court held that, Failure to provide evidence of the novelty and uniqueness of the design, Or fails to indicate that its design is distinctive, The design right shall be deemed invalid, Not protected by law.

Apply the above principles to the dispute, Whereas the Plaintiff in the first instance failed to submit any evidence of the novelty and uniqueness of its non-registered design, Nor does it specify its distinctive part in the complaint, It simply describes and states that the design on which it is based is new, And have unique properties, The Court of Appeal therefore held that the judgment made by the court of first instance was improper. One of the defendant's grounds of appeal was the lack of novelty and uniqueness of the non-registered design involved, So the appellate court accepted the defendant's grounds of appeal, Overturn the relevant judgment of the court of first instance.

[comment] In this case, Court of appeal vs "European Union regulation (EC) 6/2002 No" The first 85. 2 The provisions of the article are strictly interpreted. This regulation increases the non-registered design right owner's burden of proof in infringement litigation, Accordingly, it increases the litigation preparation cost of the right holder. This provision is consistent with paragraph 1 of the article (The first 85. 1 article) prescribed "The registered Community design presumption is valid" Opposite principle, The latter requires that the party challenging the validity of the registered design rights should provide evidence, Certifying that the registered design does not possess novelty or uniqueness. But the law is unlikely to be overly strict, That is, the non-registered design owner is required to prove that his design is different from every previous design that has been published, Because it's an impossible burden of proof (probatio diabolica) , In fact, it is equivalent to depriving the right holder of the possibility of protecting this kind of appearance design.

compile: Liu Dan, The source of Aisabri Legal Counsel: Esabaril (ELZABURU) Intellectual property cover image source: Bing Pictures