Screenshots
do not prove
disclosure.
Screenshots
do not prove
disclosure.
of
Is a catalog photo or a screenshot from social media sufficient as evidence of a design’s disclosure? In nullity proceedings concerning a patterned rubber floor mat, the EUIPO Board of Appeal clarified the requirements that must be met for such evidence.
Two Turkish manufacturers are in a dispute over a paw print design
At the heart of the case is a registered EU design for a floor covering. Beka filed the design with the EUIPO on October 4, 2023. It depicts a textured surface with a repeating paw print within a square frame.
On November 30, 2023, HDM filed an application with the EUIPO to invalidate this design on the grounds of lack of novelty. A design is considered novel only if it has not been made available to the public—that is, disclosed—prior to the filing of the application. In support of its claim, HDM submitted several documents. These included one of its own Turkish designs, filed on November 27, 2020, and published on December 24, 2020, in the Turkish Official Gazette; an undated product catalog; invoices from 2020 through 2023, and screenshots of posts on Facebook and Instagram, one of which was dated July 1, 2022.
The EUIPO’s Invalidity Division rejected the request in its entirety on June 12, 2024. It deemed only the Turkish design to have been sufficiently disclosed. It did not consider the catalog, invoices, and screenshots to be sufficient evidence.
HDM’s Arguments in the Appeal
HDM filed an appeal on August 12, 2024. It maintained that all of the submitted documents proved the disclosure of its earlier designs and submitted additional screenshots, this time preceded by hyperlinks. It was also newly argued that the contested design conflicted with the earlier Turkish design. The Board did not admit this new ground for opposition because it was not included in the original application for a declaration of invalidity. In addition, she clarified that a Turkish design could not, in any case, constitute a conflicting prior law in this sense, because Turkey is not an EU member state. Beka did not make any statements at any point during the proceedings.
EUIPO Board of Appeal dismisses the appeal
The Board of Appeal of the EUIPO dismissed the appeal by decision dated May 12, 2025—Case No. R 1620/2024-3. The Board upheld the Invalidity Division’s decision on both key points. In its view, only the Turkish design demonstrated prior disclosure before the filing date of the contested design. Furthermore, the contested design itself differed from this Turkish design in several features, for example because the paw prints in the Turkish design were recessed, whereas those in the contested design were raised. These differences were sufficient to affirm novelty.
What evidence is sufficient for the disclosure of a design?
In its decision, the Board of Appeals reaffirms the principle that disclosure cannot be established on the basis of probabilities or assumptions. Reliable, objective evidence is required. While individual pieces of circumstantial evidence may be insufficient on their own, they may nevertheless contribute to the proof when considered as a whole.
The Turkish design demonstrated what such evidence looks like. The excerpts from the Turkish Official Gazette that were submitted clearly substantiated the date and content of the publication. The Board therefore concluded that this design was publicly available prior to the filing of the contested design.
Why were the catalog and invoices insufficient?
The catalog submitted by HDM did not bear a date. Without a date, however, it was impossible to determine whether and when the floor coverings shown therein had been made available to the public. The invoices were also of no help. They were available only in Turkish, and a translation into the language of the proceedings was missing. Furthermore, the product names listed there differed from those in the catalog, so that, according to the Board, neither document could be unambiguously attributed to the same product.
Why weren’t the social media screenshots sufficient?
Even with the screenshots from Facebook and Instagram, HDM was unable to convince the chamber. The images lacked a web address, platform logo, and any other identifying marks that would have indicated their source.
The screenshots lack any elements that would identify them as Instagram or Facebook posts, as HDM claims.
Even the only dated screenshot was of no help, because it, too, lacked any proof of origin. The panel also noted the absence of any indication of public interaction—such as follower counts, comments, or shares—which would have at least provided circumstantial evidence of actual accessibility.
Is a mere hyperlink sufficient as proof?
During the appeal proceedings, HDM submitted additional screenshots, this time preceded by hyperlinks. Although the Chamber admitted this new evidence, it also deemed it insufficient. Citing its own case law regarding building blocks from a toy construction set, as well as the Court of Justice’s case law on shower drains, it clarified that a hyperlink alone does not constitute disclosure, because its content could change at any time. In the present case, the links themselves showed neither a date nor an image of the design.
Conclusion
The decision illustrates just how high the burden of proof for disclosing a design has become, particularly when it comes to evidence from social media. This is understandable, since the date and source of a screenshot can easily be manipulated if additional details are missing. However, a critical issue remains: smaller companies in particular often promote their products through precisely these kinds of informal channels without considering the need to provide evidence later on before the EUIPO.
This leaves open the practical question of how companies can document their social media communications in a way that ensures they remain admissible as evidence in the event of a legal dispute, without having to format every post as evidence from the outset.
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