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EUIPO Board of Appeal has accepted the proof of publication date done only before the BoA after Cancellation Division rejected the declaration of invalidity as unfounded because of undated documents

In order to invalidate a RCD for jewellery having the shape of a lilac flower, the invalidity applicant submitted undated images of similar patterns: three images of jewellery, three photographs of arches and one image of a Louis Vuitton bag.


However, as none of the images were dated, the EUIPO Cancellation Division rejected the declaration of invalidity as unfounded.

Before the Board of Appeal, the invalidity applicant submitted new evidence to establish the publication date of the prior designs.

For the Louis Vuitton bag, the applicant filed two photographs showing various bags and texts such as ‘Fot. Bert Stern, Vogue, listopad, 1967’. It is however unclear whether the year refers to when the photographs were taken or when they were published. Furthermore, the bags are not the same as the one filed in the declaration of invalidity.  Therefore, the date of publication of the photographs and the designs depicted therein remains unknown. 

For the prior jewellery, no further document was filed.

For the arches, the applicant filed an article relating to a book with a photograph of the same arch and extensively argued that the arch shown in the article originates from medieval times, and therefore the lilac device depicted therein has been publicly disclosed long before the filing date of the contested RCD. 

According to the BoA, the book shows that these medieval ornaments, present in publicly accessible buildings throughout Europe, could have reasonably become known in the normal course of business in the circles specialised in the sector concerned operating in the European Union.

The case is therefore remitted to the Cancellation Division in order to study novelty and individual character of the jewellery with regard to the lilac motif of the arch.

R 1434/2024-3 of 11/12/2024