Article 85 - Presumption of validity — defence as to the merits

1. In proceedings in respect of an infringement action or an action for threatened infringement of a registered EU design, the EU design court shall treat the EU design as valid. Validity may be challenged only with a counterclaim for a declaration of invalidity. However, a plea relating to the invalidity of a EU design, submitted otherwise than by way of counterclaim, shall be admissible in so far as the defendant claims that the EU design could be declared invalid on account of an earlier national design right, within the meaning of Article 25(1)(d), belonging to him.

2. In proceedings in respect of an infringement action or an action for threatened infringement of an unregistered EU design, the EU design court shall treat the EU 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 EU design. However, the defendant may contest its validity by way of a plea or with a counterclaim for a declaration of invalidity.