One of the recent decision of the Third Board of Appeal of 5 February 2015 (in Case R 1496/2013-3) is a confirmation of how effectively the Internet may supportive in terms of evidence and how perfect memory it has.

The case involved invalidity of the design No. 1085906-0003 applied for registration in OHIM by Actona Company A/S on February 10, 2009.

Inter Link SAS filed an application for a declaration of invalidity against the above RCD based on lack of novelty under Art. 25(1)(b) CDR in connection with Articles 4 to 6 CDR.  Inter Link SAS argued that coffee tables identical to the contested RCD were offered before the date of filing the RCD. As evidence, it submitted, inter alia, a print-out of an offer on the Amazon webpage showing the ‘Strike Couchtisch 80 cm’. The offer references ‘Freudenhaus’ as the vendor of the table. It further indicates that this offer has been available since 19 January 2007.

The Invalidity Division issued a decision and declared the contested RCD invalid for lack of novelty.

In the proceedings before the Board of Appeal, when making an attempt at challenging the above evidence, the rightholder presented a number of additional proofs among of which there was a letter from Mr. Noll, the owner of Freudenhaus, confirming that the Strike coffee table was not offered on Amazon before 2010 as well as  an undated screen shot provided by Freudenhaus of their Amazon retailer administration page for the ‘Strike Couchtisch 80 cm’ indicating the date 27 March 2010.

The rightholder claimed that Freudenhaus is one of its customers. Furthermore, first deliveries of the coffee tables occurred either within the grace period or at a later point in time. 

In line with what the rightholder stated, the design was first published when samples were sent to customers between 14 February 2008 and 24 April 2008 and hence, within the grace period. The development process from the first idea to the first acceptable sample took several months due to issues with the new material used for the coffee table. During the development process the design was not available to the public. This was also reflected in the explanations on the creation history provided during the invalidity proceedings.

The Board found that both, the sameness and the disclosure itself were not disputable; what turned out to be disputable was just the date of disclosure.

Therefore, the Board examined a quite significant evidentiary material and came to the conclusion that numerous internal documents of the rightholder (screen shots, drawings, photographs and data compiled on its own headed letter paper), even if they are valid items of evidence, they need to be corroborated by other evidence. Likewise, the following materials were not considered to be valuable: history of the design, which was prepared by the RCD proprietor, and included several 3D drawings from the RCD proprietor´s Chinese supplier, a sketch from the RCD proprietor´s product manager and a photograph from the RCD proprietor´s purchasing manager. For each of the pictures a short description and a date are provided. However, no supporting evidence was filed to prove the origin and the date of any of those pictures and no independent evidence corroborates the allegations made.

Another evidentiary means were also contested by the Board of Appeals, namely, Mr. Noll, the owner of Freudenhaus, issued a letter dated 12 July 2013 in which he declared: ‘I confirm that the STRIKE Coffee table was not offered before 2010 on Amazon”. However, his statement was deemed to be rather vague, notably due to the other Amazon offer which dated back to 6 September 2008, which casts doubt on the probative value to be attributed to the statement.  Another evidentiary materials in the form of the screen shot of the Amazon retailer administration page only raised further doubts.

And so did an invoice from the RCD proprietor addressed to Freudenhaus and dated 11 March 2010 which is supposed to prove that the first coffee tables were delivered to Freudenhaus at that particular time. However, the invoice does not preclude any earlier deliveries of the coffee table to Freudenhaus.

Consequently, the Board assesses the probative value of the evidence filed by the RCD proprietor as insufficient to prove that the date indicated on the print-out of an offer on the Amazon of 19 January 2007 is incorrect. The RCD proprietor´s arguments and the supporting evidence submitted are not – taken as a whole – conclusive.

This matter clearly demonstrates the effectiveness of even a single evidentiary item derived from the Internet. All the more that in many cases, especially when the evidence is to date from long time ago, it may constitute the only source of the evidence. At the same time, it is important to keep in mind that when making use of internal evidentiary materials coming from the interested party, they should be linked to the evidence coming from other sources so that the latter substantiate the first ones.  The above proves that OHIM  gives a special attention to those aspects and is able to notice the details.