JUDGMENT OF THE GENERAL COURT (Fifth Chamber)

2 March 2022 (*)

(Community design – Invalidity proceedings – Registered Community design representing an item of furniture – Ground for invalidity – No individual character – Article 6(1)(b) of Regulation (EC) No 6/2002 – Disclosure of the earlier design – Article 7(1) of Regulation No 6/2002 – Decision adopted following the annulment by the General Court of an earlier decision – Res judicata)

In Case T‑1/21,

Fabryki Mebli “Forte” S.A., established in Ostrów Mazowiecka (Poland), represented by H. Basiński, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by J. Ivanauskas, acting as Agent,

defendant,

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

Bog-Fran sp. z o.o. sp.k., established in Warsaw (Poland), represented by M. Mikosza and E. Guissart, lawyers,

ACTION brought against the decision of the Third Board of Appeal of EUIPO of 28 October 2020 (Case R 595/2020-3), relating to invalidity proceedings between Bog-Fran and Fabryki Mebli “Forte”,

THE GENERAL COURT (Fifth Chamber),

composed of D. Spielmann (Rapporteur), President, U. Öberg and M. Brkan, Judges,

Registrar: A. Juhász-Tóth, Administrator,

having regard to the application lodged at the Court Registry on 4 January 2021,

having regard to the response of EUIPO lodged at the Court Registry on 9 March 2021,

having regard to the response of the intervener lodged at the Court Registry on 30 March 2021,

further to the hearing on 9 November 2021,

gives the following

Judgment

 Background to the dispute

1        On 17 September 2013, the applicant, Fabryki Mebli “Forte” S.A., filed with the European Union Intellectual Property Office (EUIPO), pursuant to Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1), an application for registration of a Community design which is represented as follows (‘the contested design’):

2        The goods to which the contested design is intended to be applied are in Class 6 of the Locarno Agreement Establishing an International Classification for Industrial Designs of 8 October 1968, as amended, and correspond to the following description: ‘Furniture’.

3        The contested design was registered as Community design under the number 001384002-0034 on 17 September 2013 and published in Community Designs Bulletin No 222/2013 of 21 November 2013.

4        On 14 March 2016, the intervener, Bog-Fran sp. z o.o. sp.k., 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 upon in support of the application for a declaration of invalidity was that set out in Article 25(1)(b) of Regulation No 6/2002.

6        The intervener submitted that the contested design was not new and that it lacked individual character for the purposes of Article 4 of Regulation No 6/2002, read in conjunction with Articles 5 and 6 of that regulation.

7        In support of its application for a declaration of invalidity, the intervener submitted the following documents:

–        an extract from a catalogue entitled ‘NABYTKU – Novinka 2008 – WHITE’ containing the following representations of an item of furniture named ‘skrin 2D WH9’ to which the earlier design had been applied: