JUDGMENT OF THE GENERAL COURT (Tenth Chamber)
10 November 2021 (*)
(Community design – Invalidity proceedings – Community design representing a building panel – Earlier design representing a panel for a noise-reduction wall – Ground for invalidity – No individual character – Sector concerned – Informed user – Degree of freedom of the designer – No different overall impression – Relevance of goods actually marketed – Article 6 and Article 25(1)(b) of Regulation (EC) No 6/2002)
In Case T‑193/20,
Eternit, established in Kapelle-op-den-Bos (Belgium), represented by J. Muyldermans and P. Maeyaert, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by J. Ivanauskas and V. Ruzek, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Eternit Österreich GmbH, established in Vöcklabruck (Austria), represented by M. Prohaska-Marchried, lawyer,
ACTION brought against the decision of the Third Board of Appeal of EUIPO of 5 February 2020 (Case R 1661/2018-3), relating to invalidity proceedings between Eternit Österreich and Eternit,
THE GENERAL COURT (Tenth Chamber),
composed of A. Kornezov (Rapporteur), President, E. Buttigieg and G. Hesse, Judges,
Registrar: J. Pichon, Administrator,
having regard to the application lodged at the Court Registry on 10 April 2020,
having regard to the response of EUIPO lodged at the Court Registry on 17 August 2020,
having regard to the response of the intervener lodged at the Court Registry on 21 August 2020,
further to the hearing on 21 April 2021,
gives the following
Judgment
Background to the dispute
1 The applicant, Eternit, is the holder of the Community design filed with the European Union Intellectual Property Office (EUIPO) on 15 September 2014, pursuant to Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1) and registered under number 2538140-0001.
2 The contested design is represented as follows:
3 The products to which the contested design is intended to be applied are in Class 25.01 of the Locarno Agreement of 8 October 1968 establishing an International Classification for Industrial Designs, as amended, and correspond to the following description: ‘Panels [building]’.
4 On 12 December 2016, the intervener, Eternit Österreich GmbH, filed an application for a declaration of invalidity of the contested design pursuant to Article 52 of Regulation No 6/2002.
5 The ground relied on in support of the application for a declaration of invalidity was that set out in Article 25(1)(b) of Regulation No 6/2002, read in conjunction with Articles 4 to 8 of that regulation.
6 The intervener claimed, inter alia, in its application for a declaration of invalidity, that (i) the design at issue was not new within the meaning of Article 5 of Regulation No 6/2002, (ii) it did not have individual character within the meaning of Article 6 of that regulation and (iii) the features of its appearance were solely dictated by their technical function within the meaning of Article 8(1) of that regulation.
7 On 28 June 2018, the Cancellation Division adopted a decision by which, first, it found that the intervener failed to prove that the contested design was subject to the exclusion from protection laid down in Article 8(1) of Regulation No 6/2002 and, secondly, it declared the contested design invalid on the ground that it had no individual character within the meaning of Article 6 of Regulation No 6/2002 in relation to a design disclosed on 4 March 2013, that is to say before the filing date of the application for registration of the contested design, in a brochure entitled Lärmschutz, in respect of ‘noise reduction wall’ type panels, available on the website ‘http://www.rieder.at’, and which was reproduced as follows: