Wednesday, 24 November 2010

Community design infringement reference

On Class 99, Jeremy reports a reference in a designs case to the Court of Justice. It seems it's hard to track down, but David Musker has found a Dutch version and suggests using Google Translate on it. I did as he suggested, verified the translation (ha, ha) using Babel Fish and then tried a bit of guesswork, and came up with this:

C-488/10 Emparanza Celaya y Galdos International
November 19, 2010

The applicant (CEGASA) holds a community model for a bollard / column. It brought proceedings against the trading company Proyectos Integrales SL Balizamiento (PIB) for alleged violation of its rights. The defendant denies this because the traffic pole is a reproduction of a registered Community design in its name. Parties have for some time been discussing with each other about the existence of an infringement. PIB has always challenged, but changes made to the draft legal proceedings. Now CEGASA for the second time submit a request to amend PIB has refused to respond.

Regardless of whether the PIB column creates a different overall impression on the informed user from the applicant's registered Community design, the Spanish national court seeks further explanation of Article 19 of Reg. 6 / 2002, particularly as regards the term 'third'. It refers the following questions:
1. In a proceeding for infringement of a registered Community design exclusive right, does the right to prevent third parties to use it as provided for in Article 19, paragraph 1 of Regulation (EC) No 6 / 2002 of the Council of 12 December 2001 on Community designs extend to all third parties who use designs that do not give the informed user a different overall impression, or does a third party that uses a later Community design registered in his name as contrary not until that model not be annulled [or: does a third party who uses a RCD registered in its own name have a defence until that registration is annulled]?
2. Does the answer to the previous question depend on the intention of the third party, or will it vary depending on his behaviour, which shows that the third party has applied for and registered the subsequent community model after he had been requested by the proprietor of the earlier Community design after the product had been placed on the market to stop infringement of the rights attached to that older design?
Perhaps that's not much more helpful than the machine translations, and of course I might have introduced all sorts of errors of my own. Translated from Dutch into Double Dutch. But it sounds as if the Spanish court is asking whether it's a good defence to a RCD infringement action to say you're using your own registered design, and if so does it matter if that RCD was only applied for after the defendant was told by the senior rights owner that it was infringing? Put another way, perhaps, should the claimant have attacked the junior registration first? That might have been a better way to deal with the matter.
UKIPO wants comments by 29 November, which is difficult if you can only read it in Dutch - there's still nothing on the Curia website.

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