JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
6 June 2019 (*)
(Community design – Invalidity proceedings – International registration designating the European Union – Registered Community design representing the motor vehicle VW Caddy – Earlier Community design – Ground for invalidity – Individual character – Informed user – Different overall impression – Article 6 and Article 25(1)(b) of Regulation (EC) No 6/2002 – Burden of proof on the applicant for a declaration of invalidity – Requirements relating to the reproduction of an earlier design)
In Case T‑192/18,
Rietze GmbH & Co. KG, established in Altdorf (Germany), represented by M. Krogmann, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by S. Hanne, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Volkswagen AG, established in Wolfsburg (Germany), represented by C. Klawitter, lawyer,
ACTION brought against the decision of the Third Board of Appeal of EUIPO of 11 January 2018 (Case R 1244/2016-3), concerning invalidity proceedings between Rietze and Volkswagen,
THE GENERAL COURT (Eighth Chamber),
composed of A.M. Collins (Rapporteur), President, M. Kancheva and G. De Baere, Judges,
Registrar: R. Ūkelytė, Administrator,
having regard to the application lodged at the Court Registry on 16 March 2018,
having regard to the response of EUIPO lodged at the Registry of the General Court on 31 May 2018,
having regard to the response of the intervener lodged at the Registry of the General Court on 29 May 2018,
further to the hearing on 24 January 2019,
gives the following
Judgment
Background to the dispute
1 The intervener, Volkswagen AG, is the holder of the international registration designating the European Union in respect of the design filed on 1 February 2010 and registered the same day under reference DM/073118-3 at the International Bureau of the World Intellectual Property Organisation (WIPO), and published in the Bulletin of the International Bureau of the WIPO of 31 October 2010 (‘the contested design’).
2 The goods to which the contested design is intended to be applied are in Class 12.08 of the Locarno Agreement of 8 October 1968 establishing an International Classification for Industrial Designs, as amended, and correspond to the following description: ‘motor vehicles’. The contested design is represented as follows:
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3 On 5 January 2015, the applicant, Rietze GmbH & Co. KG, which sells model cars, filed an application at the European Union Intellectual Property Office (EUIPO) for a declaration of invalidity of the effects of the contested design in the European Union, based on Article 106(f) of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1), read in conjunction with Article 25(1)(b) of that regulation, on the grounds that the contested design lacked novelty, under Article 5 of that regulation, and individual character, under Article 6 of that regulation.
4 In support of its application for a declaration of invalidity, the applicant argued that the contested design was a design for the multipurpose vehicle VW Caddy, placed on the market by the intervener in 2011. In order to prove the disclosure of an earlier design, the applicant sent a previous design of that vehicle, namely the VW Caddy (2K) Life model, placed on the market by the intervener in 2004. The applicant based its application on, inter alia, Community design No 49895-0002, in respect of which the intervener had applied for registration on 7 July 2003, and which was registered and published on 9 December 2003 (‘the earlier design’).
5 By decision of 20 June 2016, the Invalidity Division of EUIPO declared the contested design invalid on the ground that it lacked individual character, under Article 6 of Regulation No 6/2002.
6 On 7 July 2016, the intervener lodged an appeal under Articles 55 to 60 of Regulation No 6/2002 against the decision of the Invalidity Division.
7 By decision of 11 January 2018 (Case R 1244/2016-3) (‘the contested decision’), the Third Board of Appeal of EUIPO upheld the appeal, annulled the decision of the Invalidity Division and rejected the application for a declaration of invalidity of the contested design. The Board of Appeal held that the contested design was new within the meaning of Article 5 of Regulation No 6/2002 and had individual character within the meaning of Article 6 of that regulation.
Forms of order sought
8 The applicant claims that the Court should:
– annul the contested decision;
– declare the contested design invalid;
– order EUIPO to pay the costs.
9 EUIPO and the intervener contend that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
10 In support of its action, the applicant raises a single plea in law, alleging infringement of Article 25(1)(b) of Regulation No 6/2002, read in conjunction with Article 4(1) and Article 6 of that regulation. In essence, it criticises the Board of Appeal for holding that the contested design had individual character because the overall impression which it produced on the informed user was different from the overall impression which the earlier design produced on that user.
11 That single plea is divided into four parts. In the first place, the Board of Appeal was wrong to confine itself to merely listing the supposed differences between the designs at issue without weighting them and without distinguishing between the aesthetic and technical features. In the second place, it overestimated the level of attention of the informed user and, consequently, attached too much importance to the differences between the designs at issue. In the third place, it erred as regards the assessment of the degree of freedom of the designer. Finally, in the fourth place, it failed to take certain evidence into consideration.
12 EUIPO and the intervener dispute the applicant’s arguments.
13 As a preliminary point, it should be recalled that Council Regulation (EC) No 1891/2006 of 18 December 2006 amending Regulations (EC) No 6/2002 and (EC) No 40/94 to give effect to the accession of the European Community to the Geneva Act of the Hague Agreement concerning the international registration of industrial designs (OJ 2006 L 386, p. 14), introduced into Regulation No 6/2002 Title XIa, containing Article 106a to 106f.
14 Under Article 106a of Regulation No 6/2002, any recording of an international registration designating the European Union in the International Register kept by the International Bureau of WIPO is to have the same effect as if it had been made in the register of Community designs of EUIPO, and any publication of an international registration designating the European Union in the Bulletin of the International Bureau of the WIPO is to have the same effect as if it had been published in the Community Designs Bulletin.
15 Article 106f of Regulation No 6/2002 provides that the effects of an international registration in the European Union may be declared invalid partly or in whole by EUIPO, in accordance with the procedure in Titles VI and VII of Regulation No 6/2002.
16 Article 25(1)(b) of Regulation No 6/2002 provides that a Community design may be declared invalid if it does not fulfil the requirements of Articles 4 to 9 of that regulation.
17 Under Article 4 of Regulation No 6/2002, a design is to be protected by a Community design only to the extent that it is new and has individual character.
18 Under Article 6(1)(b) of Regulation No 6/2002, individual character is to be assessed, in the case of a registered Community design, in the light of the overall impression produced on the informed user, which must be different from that produced by any design made available to the public before the date on which the application for registration was filed or, if a priority is claimed, the date of priority. Article 6(2) of Regulation No 6/2002 states that, for the purposes of that assessment, the degree of freedom of the designer in developing the design must be taken into consideration.
19 Accordingly, the individual character of a design results from an overall impression of difference or lack of ‘déjà vu’, from the point of view of an informed user, in relation to any previous presence in the design corpus, without taking account of any differences that are insufficiently significant to affect that overall impression, even though they may be more than insignificant details, but taking account of differences that are sufficiently marked so as to produce dissimilar overall impressions (see judgment of 7 November 2013, Budziewska v OHIM – Puma (Bounding feline), T‑666/11, not published, EU:T:2013:584, paragraph 29 and the case-law cited).
20 When assessing whether a design has individual character in relation to any previous presence in the design corpus, account is to be taken of the nature of the product to which the design is applied or in which it is incorporated, in particular the industrial sector to which it belongs, the degree of freedom of the designer in developing the design, whether there is saturation of the state of the art, which could be capable of making the informed user more attentive to the differences in the designs compared, and also the manner in which the product at issue is used, in particular according to the manner in which it is normally handled when used (see judgment of 7 November 2013, Bounding feline, T‑666/11, not published, EU:T:2013:584, paragraph 31 and the case-law cited).
21 Finally, it should be noted that the legality of decisions of the Board of Appeal must be assessed solely on the basis of Regulation No 6/2002, as interpreted by the Courts of the European Union, and not on the basis of national decisions, even where the latter are based on provisions analogous to those of that regulation (see judgment of 4 July 2017, Murphy v EUIPO – Nike Innovate (Electronic wristband), T‑90/16, not published, EU:T:2017:464, paragraph 72 and the case-law cited).
22 It is in the light of those considerations that the applicant’s arguments should be examined.
23 It is appropriate to rule on the second part of the single plea, concerning the level of attention of the informed user, before analysing the first part, concerning the assessment, from that user’s point of view, of the overall impression created by the designs at issue, and subsequently examining the third and fourth parts of the single plea.
The second part of the single plea, relating to the level of attention of the informed user
24 According to the applicant, the Board of Appeal overestimated the level of attention of the informed user and, consequently, attached too much importance to the differences between the designs at issue.
25 First of all, the applicant asserts that the informed user is not able to distinguish, beyond the experience gained by using the product incorporating the contested design, the aspects of its appearance which are dictated by its technical function from those which are arbitrary. The differences between the designs at issue which were mentioned by the Board of Appeal concern technical details which cannot be perceived by a person who has a certain degree of knowledge with regard to the normal features of motor vehicles. These include, inter alia, bumpers, headlights, indicators and rear hatches.
26 The applicant then submits that the informed user attaches less importance to the differences between car models launched consecutively by one car manufacturer than to the differences between vehicle models from different manufacturers. As regards car models from one manufacturer, the informed user pays less attention to the design than to new technical features and to developments in terms of the vehicle’s safety, performance and driving comfort. Moreover, first, a buyer’s decision to purchase a VW Caddy is not based on a comparison with the previous series of vehicles, but on a comparison with the vehicles of other manufacturers. In support of that argument, the applicant refers to a decision of the Invalidity Division of 13 September 2016 in invalidity proceedings registered under reference ICD 9742. Secondly, the success of the VW Caddy is based not on its appearance, but on its reliability.
27 Finally, the applicant relies on an article, published in a German car magazine, on the absence of differences between the designs at issue. It criticises the Board of Appeal for having disregarded the content of that article, stating that the article contains a clear indication of the perception that the informed user has.
28 According to the case-law, the status of ‘user’ implies that the person concerned uses the product in which the design is incorporated, in accordance with the purpose for which that product is intended. The qualifier ‘informed’ suggests in addition that, without being a designer or a technical expert, the user knows the various designs which exist in the sector concerned, possesses a certain degree of knowledge with regard to the features which those designs normally include, and, as a result of his interest in the products concerned, shows a relatively high degree of attention when he uses them (see judgment of 20 October 2011, PepsiCo v Grupo Promer Mon Graphic, C‑281/10 P, EU:C:2011:679, paragraph 59 and the case-law cited, and judgment of 22 June 2010, Shenzhen Taiden v OHIM – Bosch Security Systems (Communications equipment), T‑153/08, EU:T:2010:248, paragraphs 46 and 47).
29 The concept of the informed user must be understood as lying somewhere between that of the average consumer, applicable in trade mark matters, who need not have any specific knowledge and who, as a rule, makes no direct comparison between the trade marks at issue, and the sectoral expert, who has detailed technical expertise. Thus, the concept of the informed user may be understood as referring, not to a user of average attention, but to a particularly observant one, either because of his personal experience or his extensive knowledge of the sector in question (judgment of 20 October 2011, PepsiCo v Grupo Promer Mon Graphic, C‑281/10 P, EU:C:2011:679, paragraph 53).
30 Finally, the Court has held that the very nature of the informed user means that, when possible, he will make a direct comparison between the earlier design and the contested design (see, to that effect, judgment of 18 October 2012, Neuman and Galdeano del Sel v José Manuel Baena Grupo, C‑101/11 P and C‑102/11 P, EU:C:2012:641, paragraph 54 and the case-law cited).
31 In the present case, in paragraphs 18 and 20 of the contested decision, the Board of Appeal described the informed user as a person who, without being a designer or a technical expert, knows the various designs which exist in the motor vehicle sector, possesses a certain degree of knowledge with regard to the features which motor vehicles normally include, and, as a result of his interest in the products concerned, shows a high degree of attention when he uses them. The informed user of motor vehicles is a person who is interested in those vehicles, drives and uses them and, as a reader of the relevant magazines and visitor to motor shows and car dealerships, is familiar with the models available on the market. He is aware that manufacturers regularly update the technical features and the appearance of models which are well-established on the market. He is also aware that the aim of this regular ‘facelift’ is to reflect certain fashion trends without, however, completely discarding the characteristic design features of the vehicle model in question. According to the Board of Appeal, none of the differences referred to in paragraphs 40 to 42 below will escape the attention of the informed user as described.
32 It should be noted that the applicant’s arguments do not call into question the Board of Appeal’s assessment of the informed user’s level of attention set out above.
33 It is necessary to reject, first of all, the applicant’s argument that the informed user is incapable of perceiving the differences identified by the Board of Appeal relating to bumpers, headlights, indicators and rear hatches because they concern technical details. First, the Board of Appeal did not refer to differences concerning the indicators in the designs at issue. Secondly, it is clear from the contested decision that the differences identified by the Board of Appeal regarding the bumpers, headlights and rear hatches concern their appearance and not their technical details. The informed user is therefore capable of perceiving them. The fact that the modification of some of those car parts may also have a technical effect is irrelevant in that regard.
34 Furthermore, the applicant’s argument that the informed user attaches less importance to the differences between car models launched consecutively by one car manufacturer than to the differences between vehicle models from different manufacturers cannot succeed. None of the matters of fact or law put forward by the applicant in support of that argument are capable of calling into question the Board of Appeal’s assessment concerning the informed user’s level of attention in the context of the comparison of the designs at issue. The part of the Invalidity Division’s decision of 13 September 2016 which the applicant cites in support of that argument is not relevant in that regard, since it does not concern the comparison between the level of attention which the informed user pays to models launched consecutively by one car manufacturer and the level of attention he pays to models from other manufacturers. Moreover, as regards the case-law cited in paragraphs 28 and 29 above, the applicant’s argument concerning what influences purchasing decisions and the fact that, according to the applicant, the success of the VW Caddy is based not on its appearance, but on its reliability, are of no relevance.
35 Finally, the argument that the Board of Appeal should have taken into account the point of view expressed in the German car magazine must be rejected. The possibility for press articles to be taken into consideration cannot be ruled out, but the Board of Appeal is not obliged to do so where it considers, as in the present case, that the point of view expressed is not relevant because it does not reflect the overall impression made on the informed user.
36 It follows that the second part of the single plea must be rejected as unfounded.
The first part of the single plea, relating to the overall impression on the informed user
37 The applicant asserts that it is clear from the case-law that EUIPO must weigh the features of the designs at issue in so far as different features may have more or less of an impact on the appearance of the designs. Accordingly, first, the Board of Appeal should have analysed the similarities between the designs at issue. Such an analysis would have led to the conclusion that the designs at issue were almost identical in the basic shape of their car body, the profile, the shape and positioning of the windows, the windscreen and the bonnet, the radiator grille and the headlights. Secondly, it should have distinguished between the aesthetic characteristics and the technical characteristics since, given the predominantly technical function of the headlights and the differences relating exclusively to the colour of the bumpers and radiator grills, the informed user would attribute little importance to them when viewing each design as a whole. However, simply setting out the supposed differences between the designs at issue, as the Board of Appeal did in paragraph 24 et seq. and paragraph 33 et seq. of the contested decision, has not enabled the Board to judge whether the overall impression made on the informed user would be different.
38 It should be noted that, in paragraphs 23 to 31 of the contested decision, the Board of Appeal assessed the individual character of the contested design as compared with the earlier design. It based its assessment on the following views of the designs at issue:
Contested design | Earlier design |
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39 In paragraphs 24 to 29 of the contested decision, the Board of Appeal concluded that there were clear differences between the designs at issue.
40 In the first place, based on the side, front and rear views taken together, the Board of Appeal found that the bonnet of the contested design was shorter and that the overall impression was that of a broader and sturdier vehicle, while the vehicle corresponding to the earlier design appeared narrower and box-shaped.
41 In the second place, based on the front views, the Board of Appeal found that there were differences in the shape and positioning of the headlights and front bumpers. In the contested design, the narrow, dark radiator grille slopes smoothly into the headlights, which are angled outwards, thus resembling cats’ eyes. The upper part of the front bumper is the same colour as the body of the car, while the lower part is dark, with two small additional round lights which are not present in the earlier design. The headlights in the earlier design are almost rectangular in shape and stand out clearly from the dark radiator grille of the same height. The radiator grille and the dark bumper form a compact unit in contrasting colour to the rest of the vehicle body (view 1/5). On account of the slightly sloping headlights, the front view of the contested design gives the impression of the stylised face of cat, whereas the earlier design does not produce that impression. Moreover, in the contested design, the wing mirrors are the same colour as the car, foldable and have a curved shape, whereas those in the earlier design are flat and dark, therefore in contrast to the colour of the car body.
42 In the third place, based on the rear views, the Board of Appeal found that the contested design showed a one-piece hatch door and a bumper of the same colour as the car. In the earlier design, the hatch door is above the number plate and there is a visual contrast between the dark bumper and the colour of the car body. On account of the visual integration of the bumper with the body, the overall appearance of the rear view of the contested design is ‘chunkier’ than that of the earlier design. The side view of the contested design (views 3.3 and 3.7) clearly shows the colour of the front and rear bumpers and the headlights. Conversely, in the side view of the earlier design, the dark bumpers are in contrast to the colour of the car body and the headlights are barely visible.
43 The Board of Appeal concluded that none of the differences mentioned in paragraphs 40 to 42 above would escape the attention of an informed user. They produce an overall impression of the vehicle corresponding to the contested design which differs from the overall impression produced by the vehicle corresponding to the earlier design. It found, in particular, that the different shape and positioning of the headlights gave the vehicle a different appearance, which had an impact on the overall impression.
44 It should be noted that the applicant’s arguments do not call into question the assessment made by the Board of Appeal in paragraphs 24 to 31 of the contested decision and set out in paragraphs 40 to 43 above.
45 First of all, contrary to what is asserted by the applicant, the Board of Appeal did not confine itself to merely listing the differences between the designs at issue. First, it is clear from the contested decision that it took into consideration the similarities between the designs at issue in terms of the box-shaped car body and the number and positioning of windows, doors, headlights, tail lights and wing mirrors. Secondly, it is clear from paragraphs 25 to 31 of the contested decision that it assessed the overall impression produced by the designs at issue by analysing the front, side and rear views, taken both separately and together.
46 In support of the argument that the Board of Appeal should have analysed the similarities between the designs at issue, the applicant refers to the fact that, in paragraph 73 of the judgment of 22 June 2010, Communications equipment (T‑153/08, EU:T:2010:248), the General Court found that the stylised decoration on the contested design could not offset the similarities found and was not, consequently, sufficient to confer individual character on that design. In that regard, it should be observed that the finding in question constitutes a finding of fact specific to the individual case, and not a legal requirement as to the way in which the individual character of a design should be assessed.
47 It should also be noted that there is no requirement, under the settled case-law of the Court cited in paragraphs 19 and 20 above, to weight the features of the designs in order to establish whether the overall impression which the contested design produces on the informed user is different from that produced by the earlier design. In circumstances where, as in the present case, the assessment of sufficiently marked differences between the designs at issue clearly establishes that the overall impression which the contested design produces on the informed user is different from that produced by the earlier design, EUIPO cannot be required to weight each of the features of the designs at issue.
48 Finally, the argument that the Board of Appeal should have distinguished between the aesthetic characteristics and technical characteristics cannot succeed. First, the applicant has not put forward any matters of fact or law in support of its assertion that, when viewing the designs as a whole, the informed user attributes little importance to the headlights, because of their predominantly technical function, and to the differences in the colours of the bumpers and radiator grilles. Secondly, although those features have a technical function, they are not purely functional, and their appearance can be modified, so any differences in their shape or positioning can affect the overall impression of the product in which they are incorporated (see, to that effect, judgment of 4 July 2017, Electronic wristband, T‑90/16, not published, EU:T:2017:464, paragraph 61).
49 It follows that the first part of the single plea in law must be rejected as unfounded.
The third part of the single plea, concerning the freedom of the designer
50 In paragraph 17 of the contested decision, the Board of Appeal described the degree of freedom of a designer of passenger vehicles. It found that that freedom was subject to the constraints imposed by the technical function of a motor vehicle, which serves the purpose of carrying people and loads. Moreover, there are statutory requirements, in particular in the area of road safety. However, the designer’s freedom is not subject to any constraints as regards the design of the technical and statutory features. The potential expectations of the market or certain design trends are not relevant factors that restrict the freedom of the designer.
51 The applicant submits, first, that the arguments put forward in the context of the first two parts of the single plea apply a fortiori if the designer has a high degree of freedom. Secondly, it asserts that the existence of any constraints imposed on the designer by the market should not be taken into consideration when assessing the individual character of the contested design.
52 EUIPO contends that the applicant did not put forward any complaints and cannot, therefore, make any observations in that regard.
53 It must be borne in mind that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court by virtue of the first paragraph of Article 53 of that Statute, and Article 177(1)(d) of the Rules of Procedure of the General Court, all applications must contain, inter alia, a summary of the pleas in law on which the application is based. The information given must be sufficiently clear and precise to enable the defendant to prepare his defence and the General Court to decide the case. The same considerations also apply to all claims, which must be accompanied by pleas and arguments enabling both the defendant and the Court to assess their validity. It is therefore necessary for the matters of fact and of law on which a case is based to be indicated coherently and intelligibly in the application itself. Similar requirements apply where a claim or an argument is relied on in support of a plea in law (see judgment of 13 March 2013, Biodes v OHIM – Manasul Internacional (FARMASUL), T‑553/10, not published, EU:T:2013:126, paragraph 22 and the case-law cited).
54 It should be noted that the applicant does not dispute the Board of Appeal’s findings that the freedom of the designer is subject to the constraints imposed by, first, the technical function of a motor vehicle, which serves the purpose of carrying people and loads, and, secondly, statutory requirements, in particular in the area of road safety. Moreover, EUIPO and the applicant both admit that potential market expectations or certain trends in design are not factors that restrict the freedom of the designer (see, to that effect, judgment of 4 February 2014, Sachi Premium-Outdoor Furniture v OHIM – Gandia Blasco (Armchair), T‑357/12, not published, EU:T:2014:55, paragraphs 23 and 24 and the case-law cited).
55 Furthermore, it should be noted that the applicant has not put forward any matters of fact or law in support of that part of the single plea. It does not explain how the Board of Appeal erred in assessing the degree of freedom of the designer.
56 It follows that the third part of the single plea in law must be rejected as inadmissible.
The fourth part of the single plea, alleging that the Board of Appeal should have taken certain evidence into consideration
57 The applicant submits that the Board of Appeal should have taken into account, first, an illustration entitled ‘VW Caddy Life (2004-2010)’ which appeared in an article from the online encyclopaedia Wikipedia, and secondly, an illustration from a used car offer, both of which were annexed to its application for a declaration of invalidity. It is important to take those illustrations into account because the vehicle which appears therein has a bumper which is of the same colour as the rest of the vehicle. The difference in the colour of the bumper, highlighted several times in the contested decision, is therefore irrelevant.
58 The applicant also criticises the Board of Appeal for having failed to take into account an online article because it was not attached in annex. According to the applicant, that article was annexed to the statement of 13 January 2017 addressed to the Board of Appeal.
59 It must be held that the Board of Appeal was right to exclude from its analysis the illustration which appeared in an article from the online encyclopaedia Wikipedia. It should be recalled that, in order to assess the probative value of a document, it is necessary to check the plausibility and accuracy of the information it contains. Account must be taken, inter alia, of the origin of the document, the circumstances of its preparation and the person to whom it is addressed, and of whether it seems from the content to be sensible and reliable (see judgment of 9 March 2012, Coverpla v OHIM – Heinz-Glas (Phial), T‑450/08, not published, EU:T:2012:117, paragraph 26 and the case-law cited). In the present case, given that Wikipedia is an online encyclopaedia whose content may be amended at any time and by any visitor, that illustration must be considered to have extremely limited probative value (see, to that effect, judgment of 10 February 2010, O2 (Germany) v OHIM (Homezone), T‑344/07, EU:T:2010:35, paragraph 46).
60 As regards the complaint that the Board of Appeal failed to take into consideration the illustration in the used car offer, it should be noted that it is essential that the departments of EUIPO have an image of the earlier design that makes it possible to see the appearance of the product in which the design is incorporated and to identify the earlier design precisely and with certainty, so that they may, in accordance with Articles 5 to 7 of Regulation No 6/2002, assess the novelty and individual character of the contested design and carry out a comparison of the designs at issue as part of that assessment. It is a prerequisite of an examination whether the contested design does in fact lack novelty or individual character that a specific and defined earlier design is available (judgment of 21 September 2017, Easy Sanitary Solutions and EUIPO v Group Nivelles, C‑361/15 P and C‑405/15 P, EU:C:2017:720, paragraph 64).
61 It is for the party which lodged the application for a declaration of invalidity to provide EUIPO with the necessary information and, in particular, to identify and reproduce precisely and entirely the design that is claimed to be earlier in order to demonstrate that the contested design cannot be validly registered (judgment of 21 September 2017, Easy Sanitary Solutions and EUIPO v Group Nivelles, C‑361/15 P and C‑405/15 P, EU:C:2017:720, paragraph 65).
62 EUIPO cannot be required, in particular in the context of assessing the novelty of a contested design, to combine various elements of an earlier design, since it is for the applicant for a declaration of invalidity to produce a complete representation of that earlier design. Moreover, any potential combination would be flawed, since it would necessarily entail approximations (judgment of 21 September 2017, Easy Sanitary Solutions and EUIPO v Group Nivelles, C‑361/15 P and C‑405/15 P, EU:C:2017:720, paragraph 69). The same applies as regards the assessment of the individual character of the contested design. Indeed, in order for a design to be considered to have individual character, the overall impression which that design produces on the informed user must be different from that produced on such a user not by a combination of features taken in isolation and drawn from a number of earlier designs, but by one or more earlier designs, taken individually (judgment of 19 June 2014, Karen Millen Fashions, C‑345/13, EU:C:2014:2013, paragraph 35).
63 In the present case, the applicant expects EUIPO not only to combine various representations of the product in which the earlier design is incorporated, but also to replace an element which appears in most of the representations, namely a bumper of a different colour from the vehicle, with an element which does not appear in any of them, namely a bumper of the same colour as the vehicle. Therefore, the applicant did not provide EUIPO with the information to identify and reproduce precisely and entirely the design that is claimed to be earlier in the context of the present plea. It follows that the Board of Appeal did not err in not taking into account the fact that the product in which the earlier design is incorporated, which appears in the used car offer, has a bumper of the same colour as the vehicle.
64 As regards the online article which the Board of Appeal disregarded, it must be held that the Board was not obliged to take it into account, since it was irrelevant because, as noted in paragraph 34 of the contested decision, it did not provide any information on the overall impression produced on the informed user. Moreover, the observation, also made in paragraph 34 of the contested decision, that the article in question was in actual fact not annexed to the applicant’s observations was made for the sake of completeness, so the applicant’s complaint that the Board of Appeal should have taken it into account simply because it was annexed to the observations is invalid.
65 It follows from all the foregoing that the fourth part of the single plea, and therefore the action in its entirety, should be dismissed, without it being necessary to rule on the admissibility of the second head of claim requesting that the General Court declare the contested design invalid.
Costs
66 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO and the intervener.
On those grounds,
THE GENERAL COURT (Eighth Chamber),
hereby:
1. Dismisses the action;
2. Orders Rietze GmbH & Co. KG to pay the costs.
Delivered in open court in Luxembourg on 6 June 2019.
[Signatures]