Article 85
Presumption of validity — defence as to the merits
- In proceedings in respect of an infringement action or an
action for threatened infringement of a registered Community
design, the Community design court shall treat the Community
design as valid. Validity may be challenged only with a counter
claim for a declaration of invalidity. However, a plea relating to
the invalidity of a Community design, submitted otherwise
than by way of counterclaim, shall be admissible in so far as
the defendant claims that the Community design could be
declared invalid on account of an earlier national design right,
within the meaning of Article 25(1)(d), belonging to him.
- In proceedings in respect of an infringement action or an
action for threatened infringement of an unregistered
Community design, the Community design court shall treat the
Community design as valid if the right holder produces proof
that the conditions laid down in Article 11 have been met and
indicates what constitutes the individual character of his
Community design. However, the defendant may contest its
validity by way of a plea or with a counterclaim for a declara
tion of invalidity.