Article 123 — Action or counterclaim for a declaration of invalidity of an EU design

1. An action or a counterclaim for a declaration of invalidity of an EU design may only be based on the grounds for invalidity referred to in Article 27. 2. In the cases referred to in Article 27(2), (3), (4) and (5), the action or the counterclaim may be brought solely by the person entitled under those provisions. 3. If the counterclaim is brought in a legal action to which the right holder of the EU design is not already a party, the right holder shall be informed thereof and may be joined as a party to the action in accordance with the conditions laid down in the law of the Member State where the court is situated. 4. The validity of an EU design may not be put in issue in an action for a declaration of non-infringement. 5. The EU design court with which a counterclaim for a declaration of invalidity of a registered EU design has been filed shall not proceed with the examination of the counterclaim until either the interested party or the court has informed the Office of the date on which the counterclaim was filed. The Office shall record that information in the Register in accordance with Article 104(3), point (q). If an application for a declaration of invalidity of the registered EU design had been filed with the Office before the counterclaim was filed, the court shall be informed thereof by the Office and stay the proceedings in accordance with Article 130(1) until the decision on the application is final or the application is withdrawn. 6. The EU design court hearing a counterclaim for a declaration of invalidity of a registered EU design may, on application by the right holder of the registered EU design and after hearing the other parties, stay the proceedings and request the defendant to submit an application for a declaration of invalidity to the Office within a time limit which the court shall determine. If the application is not made within the time limit, the proceedings shall continue and the counterclaim shall be deemed withdrawn. Article 130(3) shall apply.