Spain refers two design infringement questions to Court of Justice

Posted on Curia recently was news of another reference to the Court of Justice of the European Union for a preliminary ruling -- this time from the Juzgado de lo Mercantil No 1 de Alicante, which is Spain's Community Design Court. This is Case C-488/10 Celaya Emparanza y Galdos Internacional S.A. v Proyectos Integrales de Balizamientos S.L. The questions referred for a ruling are as follows:

"In proceedings for infringement of the exclusive right conferred by a registered Community design, does the right to prevent the use thereof by third parties provided for in Article 19(1) of Council Regulation ... 6/20021 ... on Community designs extend to any third party who uses another design that does not produce on informed users a different overall impression or, on the contrary, is a third party who uses a subsequent Community design registered in his name excluded until such time as that design is declared invalid?

Is the answer to the first question unconnected with the intention of the third party or does it depend on his conduct, a decisive point being whether the third party applied for and registered the later Community design after receiving an extra-judicial demand from the proprietor of the earlier Community design calling on him to cease marketing the product on the ground that it infringes rights deriving from that earlier design?"

This weblog would be delighted to hear from any informed reader as to what is the factual background of this reference.