||All England Reporter
|| All ER (D) 15 (Jun)
|| EWCA Civ 729
||Court of Appeal, Civil Division
Lord Neuberger MR, Lloyd and Moore-Bick LJJ
||Henry Carr QC and Anna Edwards-Stuart (instructed by Simmons & Simmons LLP) for the claimant.
||Michael Silverleaf QC and Richard Hacon (instructed by Freshfields Bruckhaus Deringer LLP) for the defendant.
||30 May 2012
Design - Design right - Infringement - Claimant applying to the Office for Harmonisation in the Internal Market for a declaration of invalidity of defendant's design - Claimant issuing English proceedings claiming declaration of non-infringement - Defendant counterclaiming in English proceedings alleging infringement - Defendant applying to stay English proceedings on basis validity in issue in OHIM - Judge refusing to stay proceedings - Whether judge erring - Council Regulation (EC) 6/2002, art 91(1).
Design Design right. The Court of Appeal, Civil Division, upheld a decision that the claimant's proceedings seeking a declaration of non-infringement of the defendant's design rights should not be stayed pursuant to art91(1) of Council Regulation (EC) 6-2002 pending the determination of proceedings in the Office for Harmonisation in the Internal Market since, if there was a claim for a declaration of non-infringement and a counterclaim for infringement, the stay which was required by art91(1) of the Regulations, absent special grounds, was the counterclaim, not of the claim.
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