Case T‑9/15

Ball Beverage Packaging Europe Ltd

v

European Union Intellectual Property Office

(Community design — Invalidity proceedings — Registered Community design representing three cans — Earlier design — Ground for invalidity — Individual character — Different overall impression — Article 6 and Article 25(1)(b) of Regulation (EC) No 6/2002 — Group of articles constituting a single unit — Scope of the description of the registered Community design — Obligation to state reasons — Replacement of a party to the proceedings)

Summary — Judgment of the General Court (First Chamber), 13 June 2017

1.      Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Brief summary of the pleas in law on which the application is based

(Rules of Procedure of the General Court (1991), Art. 44(1)( c))

2.      Community designs — Procedural provisions — Statement of reasons for decisions — First sentence of Article 62 of Regulation No 6/2002 — Scope identical to that of Article 296 TFEU — Recourse by the Board of Appeal to implicit reasoning — Lawfulness — Conditions

(Art. 296 TFEU; Council Regulation No 6/2002, Art. 62, first sentence)

3.      Community designs — Procedural provisions — Registration procedure — Essentially formal, expeditious check

(Council Regulation No 6/2002, recital 18)

4.      Community designs — Procedural provisions — Application for registration — Conditions to be satisfied — Description explaining the representation or the specimen

(Council Regulation No 6/2002, Arts 10(1) and 36(3(a) and (6); Commission Regulation No 2245/2002, Art. 1(2)(a))

5.      Community designs — Ground for invalidity — No individual character — Design not giving the informed user a different overall impression from that produced by the earlier design — Global assessment of all the elements of the prior design

(Council Regulation No 6/2002, Arts 6(1) and 25(1)(d))

6.      Community designs — Ground for invalidity — No individual character — Design not giving the informed user a different overall impression from that produced by the earlier design — Informed user — Definition

(Council Regulation No 6/2002, Arts 6(1), 10(1), and 25(1)(b))

1.      The summary of the pleas in law must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court to rule on the action, even without any other information. It follows therefrom that the meaning and scope of a plea in law raised in support of an action must be unambiguously apparent from the application.

(see para. 20)

2.      Under the first sentence of Article 62 of Regulation No 6/2002, decisions of EUIPO must state the reasons on which they are based. That obligation to state reasons has the same scope as that under Article 296 TFEU, pursuant to which the reasoning of the author of the act must be shown clearly and unequivocally, and its purpose is twofold: first, to enable the persons concerned to ascertain the reasons for the measure taken in order to defend their rights and, second, to enable the European Union Courts to exercise their power to review the legality of the decision. However, the Boards of Appeal cannot be required to provide an account that follows exhaustively and one by one all the lines of reasoning articulated by the parties before them. The reasoning may therefore be implicit, on condition that it enables the persons concerned to know the reasons for the Board of Appeal’s decision and provides the competent Court with sufficient material for it to exercise its power of review.

Moreover, it should be noted that the obligation to give reasons for decisions is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure. The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds contain errors, those errors will affect the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect.

(see paras 26, 27)

3.      The procedure for the registration of Community designs established by Regulation No 6/2002 consists of an essentially formal, expeditious check, which, as indicated in recital 18 of that regulation, does not require any substantive examination as to compliance with the requirements for protection prior to registration, and which, unlike the registration procedure under Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark, does not provide for any stage during which the holder of an earlier registered design can oppose registration.

(see para. 55)

4.      It follows, first, from Article 36(3)(a) of Regulation No 6/2002, that the function of the description which may be contained in the application for registration of a design is to explain the representation or the specimen and, secondly, from Article 36(6) of that regulation, that that description may not affect the scope of protection of the design as such. Article 10(1) of that regulation, under the heading ‘Scope of protection’, states that the protection conferred by the Community design is to include any design which does not produce on the informed user a different overall impression.

It follows that the description which may be contained in the application for registration may not influence the substantive assessments relating to the novelty or individual character of the design at issue. That is moreover confirmed by Article 1(2)(a) of Commission Regulation (EC) No 2245/2002 of 21 October 2002 implementing Council Regulation (EC) No 6/2002 on Community designs (OJ 2002 L 341, p. 28), which provides in particular that the description must relate only to those features which appear in the reproductions of the design or the specimen and that that description may not contain statements as to the purported novelty or individual character of the design or its technical value.

It also follows that that description may also not have an influence on the question of what is the subject matter of the protection afforded by the design at issue, which is clearly connected with the assessments relating to novelty and individual character.

(see paras 66-68)

5.      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. The comparison of the overall impressions produced by the designs must be synthetic and may not be limited to an analytic comparison of a list of similarities and differences. That comparison must relate solely to the elements actually protected, without taking account of characteristics excluded from the protection.

(see paras 78, 79)

6.      In the assessment of the individual character of a design, account must also be taken of the point of view of an informed user. According to the case-law, an ‘informed user’ within the meaning of Article 6 of Regulation No 6/2002 is neither a manufacturer nor a seller of the products in which the designs at issue are intended to be incorporated or to which they are intended to be applied. The informed user is particularly observant and has some awareness of the state of the prior art, that is to say the previous designs relating to the product in question that had been disclosed on the date of filing of the contested design, or, as the case may be, on the date of priority claimed.

As regards the informed user’s level of attention, the Union judicature has stated that, although the informed user is not the well-informed and reasonably observant and circumspect average consumer who normally perceives a design as a whole and does not proceed to analyse its various details, he is also not an expert or specialist capable of observing in detail the minimal differences that may exist between the designs in conflict. Thus, the qualifier ‘informed’ suggests 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 paras 80, 81)