Cancellation of a Community design

According to the Article 24 of the Council Regulation n°06/2002 on Community designs, a registered design can be declared invalid by the EUIPO on request of a third person, if the design does not fulfil the conditions of validity set out in this regulation, for example the conditions of novelty and of individual character.

The cancellation request must be filed in the first of the two languages choosen by the owner.

A decision of the EUIPO declaring the invalidity of a design has for consequence that the design is considered as having had no effect as from its filing.

The request for invalidity can also be filed before a European Court in response to an infringement action.

The proceeding is a "paper proceeding", an hearing being very rare.

 

In order to revoke a Community design, it is necessary to show that the design was known/published before the application date of the Community design. The most important part of the request is the proof to be filed and the fact that the proofs have to be dated and published with a true date.

According to the EUIPO practice :

A representation of the prior design(s), supported by documentary evidence of disclosure, is required.

The following list contains examples of documents that can serve this purpose.

  • Official publications: publication of an earlier design in the bulletin of any IP office anywhere in the world generally constitutes disclosure, as can publications in trade mark and patent bulletins

  • Exhibitions and use in trade: making a design available to the public at an international exhibition anywhere in the world generally constitutes disclosure, as can use in trade

  • Disclosures on the internet: as a matter of principle, disclosures on the internet form part of the prior art. Information disclosed on the internet or in online databases is considered to be publicly available as of the date the information was posted. However, the nature of the internet can make it difficult to establish the actual date on which information was made available to the public: not all web pages mention when they were published

  • Statements in writing, sworn or affirmed (affidavits): as a matter of principle, affidavits in themselves are not sufficient for proving the disclosure of an earlier design. They can, however, corroborate and/or clarify the accuracy of other documents