Case Analysis : Court of Justice affirms EUIPO approach to priority (EUIPO v The KaiKai Company)

The Court of Justice ruled that a Community design application may claim priority from an international application filed under the PCT only if the subject of the international application in question is a utility model, and that the time period for doing so is six months. The ruling indicates more generally that Community designs may not claim priority from patent applications, averting the need for the significant practice changes by the EUIPO that had been threatened by the ruling of the General Court and the opinion of the Advocate General. The Court of Justice also concluded that Article 4 of the Paris Convention does not have direct effect in the legal order of the EU, but that Article 41 of Regulation (EC) 6/2002, which implements the right of priority for registered Community designs (RCDs), had to be interpreted as far as is possible, in accordance with the rules set out by the articles of that convention.

Christopher Anderson and Luca Colombo discuss the background, the decision, the case details and the practical implications of this case on Lexis Nexis.

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