8. Interesul şi termenul de exercitare a unei acţiuni în anularea unor desene/modele industriale din perspectiva art. 42 din Legea nr. 129/1992. Lipsa caracterului de noutate şi a caracterului individual la momentul înregistrării
8. Standing and time limit for bringing an action for annulment of industrial designs from the perspective of Article 42 of Law No. 129/1992. Lack of novelty and lack of individual character at the time of registration

Summary/Abstract: Article 42(1) of Law No. 129/1992 provides that the registration of a design or model may be annulled, in whole or in part, at the request of an interested person. The law does not make the status of „interested person” conditional on the claimant’s ability to obtain a registration for himself, nor on the prior demonstration of actual pecuniary damage. Under Article 33 of the Code of Civil Procedure, the interest must be vested, current, personal and legitimate, and the second sentence expressly recognises preventive interest, in order to prevent the occurrence of imminent damage. The current, personal and legitimate interest relates to the removal of an exclusive right which the party considers to have been obtained in breach of the provisions of Law no. 129/1992, the underlying aim of its action being to avert loss of clientele and sales by losing the freedom to market its products. In accordance with Article 42(2), annulment may be sought throughout the entire period of validity of the registration certificate. Thus, Law No. 129/1992 lays down neither a limitation period nor a forfeiture period, the right to seek annulment existing, as is unequivocally stated, throughout the entire duration of protection. Accordingly, the cumulative application of a generic 3 year period would deprive the special rule of its substance, since, although the law refers to the duration of protection, the holder of the action would in practice be restricted to 3 years from publication, which would run counter to the will of the legislator. It is therefore held that Article 42(2) establishes a special time limit for bringing an action for annulment, extending over the entire duration of protection.

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