You will no doubt have seen, if not followed, the litigation last year concerning declaration of non-infringement sought and obtained by Samsung of Apple’s Registered Community Designs by its own Galaxy tablets.
Interestingly, whilst litigating the issues of infringement, the question of validity of the RCD was not considered (as it would have been in a patent infringement action) because Article 84(4) of Community Design Regulation states that “the validity of a Community design may not be put in issue in an action for a declaration of non-infringement”.
Having successfully obtained the declaration of non-infringement Samsung sought to contest the validity of Apple’s Community Design. Samsung were unsuccessful and OHIM’s Invalidity Division declared Samsung’s grounds for invalidity to be unfounded.
Apple’s Community Design remains valid and the fight continues.