The disclosure of the earlier design should be clear enough to enable an appropriate comparison with the challenged design.

If it is not, the application (or invalidity request) should be rejected as not well-founded.

Barbecue

In this case, the Board was not convinced that the picture – being the only pertinent piece of evidence of divulgation – permitted a reliable comparison with the contested design for the purpose of assessing the overall impression they produce on the informed user.

Barbecue 2

The Board indicated that it possibly agreed with the contested decision's finding that the legs of the two barbecues are different (in the contested design there are two wheels) but noted that this difference had little weight in the overall assessment.

The wheels are purely functional (they make it easier to transport the barbecue) and do not play a primary role in the visual impression that the entire barbecue produces on the viewer. It followed that this picture, which failed to adequately represent the earlier design, thereby rendering any comparison with the contested design impossible, did not amount to divulgation for the purpose of Article 7(1) CDR.

The Board therefore concluded that the application for a declaration of invalidity must be rejected as unfounded.