JUDGMENT OF THE GENERAL COURT (Tenth Chamber)

20 October 2021 (*)

(Community design – Invalidity proceedings – Registered Community design representing a spiral hair elastic – Disclosure of the earlier designs – Disclosure on the internet – Article 7(1) of Regulation (EC) No 6/2002 – Equality of arms – Evidence submitted for the first time before the General Court)

In Case T‑823/19,

JMS Sports sp. z o.o., established in Łódź (Poland), represented by D. Piróg and J. Słupski, lawyers,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by E. Śliwińska and D. Walicka, acting as Agents,

defendant,

the other party to the proceedings before the Board of Appeal of EUIPO, intervening before the General Court, being

Inter-Vion S.A., established in Warsaw (Poland), represented by T. Grucelski and T. Gawliczek, lawyers,

ACTION brought against the decision of the Third Board of Appeal of EUIPO of 13 September 2019 (Case R 1573/2018‑3), relating to invalidity proceedings between Inter-Vion and JMS Sports,

THE GENERAL COURT (Tenth Chamber),

composed of A. Kornezov, President, E. Buttigieg (Rapporteur) and K. Kowalik‑Bańczyk, Judges,

Registrar: R. Ūkelytė, Administrator,

having regard to the application lodged at the Registry of the Court on 4 December 2019,

having regard to the response of EUIPO lodged at the Registry of the Court on 31 March 2020,

having regard to the response of the intervener lodged at the Registry of the Court on 23 March 2020,

having regard to the Court’s written questions to the parties and their responses to those questions lodged at the Registry of the Court on 25 and 30 November and 1 December 2020,

further to the hearing on 15 January 2021,

gives the following

Judgment

 Background to the dispute

1        The applicant, JMS Sports sp. z o.o., is the holder of the Community design filed with the European Union Intellectual Property Office (EUIPO) on 24 June 2010 and registered under number 1723677‑0001, pursuant to Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1), for products defined as ‘bobby pins’, included in Class 28.03 of the Locarno Agreement Establishing an International Classification for Industrial Designs of 8 October 1968.

2        The contested design is represented as follows:

3        On 3 January 2017, the intervener, Inter-Vion S.A., filed an application for a declaration of invalidity in respect of the contested design on the basis of Article 25(1)(b) of Regulation No 6/2002, read in conjunction with Articles 5 and 6 of that regulation. The intervener maintained that the contested design lacked novelty and individual character in relation, in particular, to the following two designs:

–        the Fancy Fane design, disclosed on 29 November 2009 on the website ‘http://faneaccessories.blogspot.fr/2009/11’ (‘the “faneaccessories.blogspot”’ website or blog) and represented as follows: