Case T‑337/12

El Hogar Perfecto del Siglo XXI, SL

v

Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

(Community design — Invalidity proceedings — Registered Community design representing a corkscrew — Earlier national design — Ground for invalidity — Lack of individual character — Overall impression not different — Informed user — Degree of freedom of the designer — Articles 4, 6 and 25(1)(b) of Regulation (EC) No 6/2002)

Summary — Judgment of the General Court (Sixth Chamber), 21 November 2013

1.      Community design — Ground for invalidity — No individual character — Design not producing on a well-informed user a different overall impression from that produced by the earlier design — Informed user — Concept

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

2.      Community design — Ground for invalidity — No individual character — Design not producing on a well-informed user a different overall impression from that produced by the earlier design — Criteria for assessment — Creative licence

(Council Regulation No 6/2002, Arts 6(2) and 25(1)(b))

3.      Community design — Appeals procedure — Action before the EU judicature — Decision of an OHIM body forming part of the context of the decision of the Board of Appeal

4.      Community design — Ground for invalidity — No individual character — Design not producing on a well-informed user a different overall impression from that produced by the earlier design — Determination of the overall impression having regard to the manner of use of the product

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

5.      Community design — Ground for invalidity — No individual character — Design not producing on a well-informed user a different overall impression from that produced by the earlier design — Criteria for assessment — Disadvantages and operational difficulties of the earlier design — Not included

(Council Regulation No 6/2002, Arts 1, 3 and 6)

1.      See the text of the decision.

(see paras 21-25)

2.      See the text of the decision.

(see paras 31-33)

3.      When the Board of Appeal confirms a lower-level decision of OHIM in its entirety, that decision, together with its statement of reasons, forms part of the context in which the contested decision was adopted, a context which is known to the applicant and which enables the Court to exercise in full its jurisdiction to review legality as regards the question whether the assessment of individual character of the design at issue was well founded.

(see para. 43)

4.      Assessment of the overall impression produced by a design on an informed user includes the manner in which the product represented by that design is used.

(see para. 46)

5.      The individual character of a design is to be assessed, in accordance with Article 6 of Regulation No 6/2002, by comparing the overall impressions produced by the designs at issue on the informed user and by taking into consideration the degree of freedom of the designer. Thus, the criterion relating to the disadvantages and various operational difficulties of the earlier design which have allegedly been resolved in the contested design, is not among those which may be taken into account for the purposes of assessing the individual character of a design. Moreover, as is apparent from Articles 1 and 3 of Regulation No 6/2002, the law on designs seeks to protect the appearance of a product and not its methods of use or operation.

(see para. 52)