Press release of March 17, 2014
BARDEHLE PAGENBERG has been successful before the Board of Appeal of the Office for the Harmonisation of the Internal Market (OHIM) in Alicante, Spain, in upholding two of three favourable decisions of the Invalidity Division in parallel Community design invalidity proceedings (Cases No R 437/2013-3 and R 438/2013-3; the third favourable decision had not been appealed). Proceedings had been initiated against Fitness Brands, Inc., Texas, on behalf of Industex SL, a leading TV-marketing company based in Barcelona, represented by BARDEHLE PAGENBERG. The accused Community designs had been registered for gymnastics and sports apparatus and equipment showing a fitness device represented by six or seven different views.
The Board of Appeal completely agreed with the facts, evidence and arguments submitted on behalf of Industex. In particular, the Board agreed that the asserted prior art should be taken into consideration; evidence presented by the right holder for the first time before the Board of Appeal should be disregarded as being produced late. In addition, the holder’s evidence was not found conclusive. Rather, according to the Board, Industex had proven “beyond doubt” that, for procedural as well as legal reasons, the asserted prior art must be taken into account and the holder’s claim that disclosure of the prior design should be disregarded must be dismissed.
The decisions are not yet final.
Representative of Industex SL:
BARDEHLE PAGENBERG (Munich):
Dr. Henning Hartwig (Attorney-at-Law, Partner)
Representative of Fitness Brands, Inc.:
Patentanwälte Westphal, Mussgnug & Partner (Munich):
Michael Bickel (European Patent Attorney)
OHIM (Board of Appeal):
Th. M. Margellos (Chairman