Design 4594802-0005 for half boots was registered in 2018 and duly renewed when an application for invalidity was filed against it.
One of the prior shoes cited by the applicant for invalidity was the model named Misty110.
According to the applicant of invalidity, it had been created in September 2017. The applicant filed several documents to show that this model had been made available to the public prior the filing date : a document showing the model (a specification sheet along with its metadata information), an affidavit of the designer, an invoice showing that 9 pairs of shoes were manufactured for presenting them during a showcase, an affidavit of one client.
EUIPO invalidity division and Board of Appeal have both concluded to that the evidence was insufficient to prove disclosure of Misty110.
The Board of Appeal reminds that the disclosure cannot be proved by means of probabilities or suppositions but must be demonstrated by solid and objective evidence.
The document showing the model is an internal document, called specification sheet. It was not made available to the public, but presents a model named Misty110.
The RCD owner argued that the specification sheet is a false document, taking into account light issues and Adobe version indicated in the metadata information. The Board of Appeal agrees that there is doubt regarding both the image, which seems to be a collage, and the creation date of the document.
In the Affidavit of the designer, a photo of the Misty110 model is included. However, the affidavit of the designer, who has close links with the invalidity applicant, does not convince the Board of Appeal as the image of the model in the affidavit seems to be another one.
The manufacturer’s affidavit also carries less evidential value since it is drawn up by a person coming from the sphere of influence of the invalidity applicant. The invoice mentions the reference “Misty110” but does not include an image to clarify which products it refers to. Furthermore, it was issued between the invalidity applicant and its manufacturer for prototypes, as stated in the affidavit, without solid evidence that these were made available to the public.
Regarding the showcase, the only evidence is an Affidavit from a single client. This affidavit is not supported by any image of the event, nor does it contain other evidence that could confirm the specific circumstances surrounding the event, such as the exact date or any records of attendees. It only vaguely refers to a client’s visit to the showroom in December 2017, without specifying an exact date, and mentions the presence of other clients without specifying further details. Without additional objective evidence, a single affidavit from one client is inconclusive. The Board of Appeal underlines that no new evidence has been filed before the Board, even if the invalidity division already had concluded the same lack of evidence showing the reality of this showcase.
Therefore, when considered as a whole, the evidence cannot prove the disclosure of the ‘Misty110’ boots.
With regard to D1 and D2 shown in the image, the Board confirmes that the only comon element with the attacked RCD is that the shoes are half boots with some criss-cross tape elements on the upper part. The overall impression produced by the contested RCD on the informed user will be different from that produced by D1 or D2.
R 1135/2024-3 of 24/02/2025