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MONDAY, 1 JULY 2013
Pillow talk, or the third party effect of a transfer of a RCD
Tags: netherlands, transfer of RCD,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA470
Pillow talk, or the third party effect of a transfer of a RCD
An interesting battle was fought before the Court of first instance in
Arnhem (which city is actually more famous for a different battle, see here) regarding the third party effect of the transfer of a Registered
Community Design (RCD).
| The RCD pillow |
The facts of the case were these: following the bankruptcy of the
original owner of RCD 1809591-0003 (for the design of a pillow), the RCD was
transferred to the defendant (Mr Van der Boor). The transfer of the RCD was
registered in OHIM's database on 22 April 2013. Publication of the transfer
took place two days later, on 24 April 2013. In the meantime, on 23 April 2013,
Van der Boor filed a petition for pre-trial seizure before the interim relief
judge (IR judge) of the Court in Arnhem, invoking the RCD. After the petition
was granted, Van der Boor had approx. 2800 allegedly infringing pillows seized
on 24 April 2013.
Subsequently, the attachee (Polydaun) initiated interim relief proceedings, claiming that the seizure should be lifted. Polydaun amongst others argued that the IR judge was not allowed to grant leave for the pre-trial seizure on 23 April 2013, since article 28(b) of the Community Design Regulation (6/2002) (CDR) provides that
Subsequently, the attachee (Polydaun) initiated interim relief proceedings, claiming that the seizure should be lifted. Polydaun amongst others argued that the IR judge was not allowed to grant leave for the pre-trial seizure on 23 April 2013, since article 28(b) of the Community Design Regulation (6/2002) (CDR) provides that
"until such time as the transfer has been entered in the register, the successor in title may not invoke the rights arising from the registration of the Community Design".
Polydaun claimed that the
IR judge should have rejected the petition for seizure, since the transfer had
not yet been published in the register at the time the leave for seizure was
granted and thus could not have any third party effect.
| The disputed pillow |
After a good night's sleep, the IR judge ruled that the permission to
seize was rightly granted on 23 April 2013, since article 28(b) CDR only
mentions the registration of the transfer, and not the publication thereof. The
IR judge considered that pursuant to article 49 CDR, upon
registration, OHIM shall publish the RCD
in the Community Designs Bulletin. According to the
judge this could however not be seen as a limitation of the new RCD
owner's right to enforce his design right immediately after the registration of
the transfer by OHIM. After all, according to the IR judge, the new RCD owner
does not have any influence on OHIM’s publication process and third parties
were already aware that the pillow in question was registered as a RCD. The IR
judge righty found that another interpretation would lead to the RCD being
unenforceable in the period between the registration of the transfer and the
actual publication thereof. The pillows remain seized, proceedings on the
merits are pending …
This post has been written and supplied by Class 99 team member Hidde Koenraad
The authentic Dutch text of this decision may be found on the IE-Forum blog here
Posted by: Blog Administrator @ 18.03The authentic Dutch text of this decision may be found on the IE-Forum blog here
Tags: netherlands, transfer of RCD,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA470
MARQUES does not guarantee the accuracy of the information in this blog. The views are those of the individual contributors and do not necessarily reflect those of MARQUES. Seek professional advice before action on any information included here.
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