Upon applying for your RCD, during the examination process, OHIM does not check whether your application is infringing an intellectual property right of a third party. Once an RCD has been registered, however, a third party may apply for a declaration of invalidity by either commencing proceedings at OHIM or submitting a counterclaim in infringement proceedings before a Community Design court.
There are several grounds on which a Community design may be declared invalid. Article 25 of the Community Design Regulation contains a full list, but the main grounds are that the design does not correspond to the definition of a Community design, the design is not novel or does not have individual character, the registered holder is not entitled by virtue of a court decision, the Community design is in conflict with a prior national design, the Community design makes unauthorised use of a design, or the Community design makes unauthorised of a work protected by copyright.
Applications for invalidity may be made to the OHIM by any natural or legal person as well as a public authority empowered to do so. A payment of a fee is required from the person requesting the declaration of invalidity.
The procedure is inter partes, which means the action is between the holder and the opposing party who is requesting the invalidation of the registered design. The invalidity division of the OHIM organises the procedure and when it considers that the submissions and evidence provided is admissible and sufficient, it renders a decision on the case. The decision reached may be appealed before the Boards of Appeal of the OHIM.
Invalidity applications will be received by the OHIM which is competent, together with the Community design courts, to resolve conflicts which arise concerning registered Community designs. On the other hand, conflicts concerning unregistered Community designs will be dealt with exclusively by the Community design courts.