Published promotional video lethal to Community Design Petsbelle scratching post

Petsbelle designs, produces and markets scratching posts. In order to protect the design of its products, the company applies for European design protection. There are two important requirements for a European design registration. A model must be novel and have its own character. Novelty is often a problem. Many companies first want to test the waters before incurring the costs to claim their rights. In the European Union it is therefore possible to claim design rights up to twelve months after first disclosure. However this grace term is hard.

When a competitor launches a similar scratching post, Petsbelle demands a ban based on a design registration, filed on March 30th 2018. However, the competitor argues invalidity of this model, as a promotional video of this product was posted on Facebook on 22 March 2017. The application was therefore submitted after twelve months and eight days of disclosure. Novelty is not about the date of first sale, but about the first disclosure. The ban order based on the registered community design is rejected, because the EU model is invalid due to the promotional video.

There’s a lesson to be learned here. No matter how enthusiastic one may be about a new product, beware of online publications before a product is brought to market. Premature publication can prove disastrous when the rights still have to be protected. (Source image: decision rechtspraak.nl)

design-law



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PURE - MENTOS

MENTOS has been selling chewing gum under the name MENTOS PURE FRESH for several years. In order to protect her rights MENTOS has registered the following trademarks: the logo MENTOS PURE FRESH, the logo MENTOS PURE FRESH 3 and a figurative depiction of the word PURE. Defendant sells chewing gum under the trademark DENTYNE PURE and has registered its logo as a trademark. Infringement or not?
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