Judgment of the General Court (Tenth Chamber) of 22 September 2021 –
Asian Gear v EUIPO – Multimox (Scooter)
(Case T‑686/20)
(Community design – Invalidity proceedings – Registered community design representing a scooter – Earlier design – Ground for invalidity – Disclosure of the earlier design – Article 7 of Regulation (EC) No 6/2002)
1. Community designs – Appeals procedure – Action before the EU judicature – Jurisdiction of the General Court – Declaratory judgments – Precluded
(Art. 266 TFEU; Council Regulation No 6/2002, Art. 61(3))
(see para. 15)
2. Community designs – Appeals procedure – Action before the EU judicature – Jurisdiction of the General Court – Alteration of a decision of the Office – Assessment in the light of the powers conferred on the Board of Appeal
(Council Regulation No 6/2002, Arts 60(1) and 61(3))
(see para. 16)
3. Community designs – Surrender and invalidity – Application for a declaration of invalidity based on the existence of an earlier design – Burden of proof
(Council Regulation No 6/2002, Art. 52; Commission Regulation No 2245/2002, Art. 28(1)(b)(i) and (vi))
(see paras 28, 31)
4. Community designs – Surrender and invalidity – Application for a declaration of invalidity – Examination of the application – Board of Appeal’s obligation to invite the parties to supplement their own pleadings and documents before it – None
(Council Regulation No 6/2002, Art. 52; Commission Regulation No 2245/2002, Art. 31(3))
(see para. 32)
5. Community designs – Surrender and invalidity – Application for a declaration of invalidity – Examination of the application – Ground of invalidity constituted by lack of novelty and individual character –Bad faith on the part of the proprietor – Irrelevant
(Council Regulation No 6/2002, Arts 7 and 25)
(see paras 39, 40)
6. Community designs – Grounds for invalidity – No individual character – Disclosure to the public – Proof of the disclosure
(Council Regulation No 6/2002, Arts 6(1), 7(1), 25(1)(b) and 65(1); Commission Regulation No 2245/2002, Art. 28(1)(b)(v) and (vi))
(see para. 45)
7. Community designs – Grounds for invalidity – No individual character – Previous disclosure of identical design – Representation of a scooter
(Council Regulation No 6/2002, Art. 7(1))
(see paras 46-51)
Re:
| Action brought against the decision of the Third Board of Appeal of EUIPO of 3 September 2020 (Case R 1043/2018-3) relating to invalidity proceedings between Asian Gear and Multimox Holding. |
Operative part
The Court:
2. | | Orders Asian Gear BV to pay the costs, including the costs necessarily incurred by Multimox Holding BV for the purposes of the proceedings before the Board of Appeal of the European Union Intellectual Property Office (EUIPO). |