JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
13 June 2019 (*)
(Community design – Invalidity proceedings – Registered Community design representing a display holder for vehicles – Earlier design – Proof of disclosure – Article 7 of Regulation (EC) No 6/2002 – Ground for invalidity – Lack of individual character – Informed user – Degree of freedom of the designer – Lack of different overall impression – Article 6 and Article 25(1)(b) of Regulation No 6/2002)
In Case T‑74/18,
Visi/one GmbH, established in Remscheid (Germany), represented by H. Bourree and M. Bartz, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by S. Hanne and D. Walicka, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
EasyFix GmbH, established in Vienna (Austria),
ACTION brought against the decision of the Third Board of Appeal of EUIPO of 4 December 2017 (Case R 1424/2016-3), relating to invalidity proceedings between EasyFix and Visi/one,
THE GENERAL COURT (Eighth Chamber),
composed of A.M. Collins, President, M. Kancheva (Rapporteur) and G. De Baere, Judges,
Registrar: E. Hendrix, Administrator,
having regard to the application lodged at the Court Registry on 6 February 2018,
having regard to the response lodged at the Court Registry on 25 April 2018,
having regard to the written question from the Court to the applicant and to the latter’s reply to that question, lodged at the Court Registry on 4 January 2019,
further to the hearing on 7 February 2019,
gives the following
Judgment
Background to the dispute
1 On 28 November 2013, the applicant, Visi/one GmbH, applied for and obtained from 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), registration, under No 1391114-0001, of the Community design represented in the following views:
2 The design at issue is intended to be incorporated in ‘display holders, signboards for vehicles’, in Class 20-03 within the meaning of the Locarno Agreement Establishing an International Classification for Industrial Designs, of 8 October 1968, as amended. It was published in Community Designs Bulletin No 2014/026 of 10 February 2014.
3 On 27 July 2015, EasyFix GmbH lodged an application for a declaration of invalidity of the design at issue, in accordance with Article 25(1)(b) of Regulation No 6/2002 in conjunction with Articles 5 and 6 of that regulation, on the ground that the design lacked novelty and individual character.
4 In Annexes A to E to the application for a declaration of invalidity, EasyFix produced, in particular, the documents described by EUIPO as follows:
5 By decision of 3 June 2016, the Invalidity Division upheld the application for a declaration of invalidity of the contested design, on the ground of lack of individual character.
6 On 3 August 2016, the applicant lodged an appeal with EUIPO, on the basis of Articles 55 to 60 of Regulation No 6/2002, against the decision of the Invalidity Division.
7 By decision of 4 December 2017 (‘the contested decision’), the Third Board of Appeal of EUIPO dismissed the appeal. It considered, in essence, that the contested design lacked individual character. First, it found that the documents produced in annexes A to E to the application for a declaration of invalidity were suitable for providing evidence of the disclosure of the earlier design. Second, it stated that informed users of the designs at issue were business people wishing to display the prices of their goods and the purchasing departments of companies which purchased such information boards for displaying prices. Third, it considered that the freedom of the designer in developing ‘display holders, signboards for vehicles’ was extensive, with respect to both the shape and the material used. Fourth, it observed that the differences between those designs were minor and did not alter the same overall impression which they gave.
Forms of order sought
8 Following a clarification of its heads of claim noted in the minutes of the hearing, the applicant claims that the Court should:
– annul the contested decision;
– order EUIPO to pay the costs, including those incurred during the proceedings before the Board of Appeal.
9 EUIPO contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
10 In support of the action, the applicant relies on four pleas in law, alleging, first, incorrect assessment of the evidence relating to the disclosure of an ‘earlier design’, in breach of Article 7(1) of Regulation No 6/2002; second, breach of the right to be heard, contrary to the second sentence of Article 62 of that regulation; third, breach of the obligation to state reasons, contrary to the first sentence of Article 62 of that regulation; and, fourth, incorrect assessment of the individual character of the design at issue, in breach of Article 6 and Article 25(1)(b) of that regulation.
First plea: incorrect assessment of the evidence relating to disclosure of an ‘earlier design’, in breach of Article 7(1) of Regulation No 6/2002
11 In the context of the first plea, the applicant takes issue with the Board of Appeal for having found that the documents produced in Annexes A to E to the application for a declaration of invalidity were suitable for proving the disclosure of an ‘earlier design’ within the meaning of Article 7(1) of Regulation No 6/2002. In support of that plea, the applicant invokes seven complaints.
12 By the first complaint, the applicant alleges that the documents produced in Annexes A and D to the application for a declaration of invalidity do not show disclosure of the ‘earlier design’, because those documents were printed only on 20 July 2015, that is to say, after the date on which the application for registration of the design at issue was filed.
13 By the second complaint, the applicant takes issue with the Board of Appeal for having asserted, in paragraph 17 of the contested decision, with respect to the catalogue produced in Annex B to the application for a declaration of invalidity, that the question whether the cover page really belonged to the rest of the pages of that annex was irrelevant. The applicant claims, on the contrary, that, owing to the doubts as to whether that cover page belonged to the rest of the catalogue, Annex B should have been ignored in its entirety. The elements of that catalogue that were communicated to the applicant were only a collection of loose pages. The discontinuous numbering, the fact that page 2 was used twice and the presence of page 31 between the two occurrences of page 2 are sufficient to show that the items in Annex B did not constitute a homogeneous catalogue and had never been published in that form. Furthermore, the fact that that catalogue refers to domain names and to different electronic addresses (sometimes the domain name www.easyfix.co.at and the electronic address info@easyfix.co.at, sometimes the domain name www.easyfix.at and the electronic address info@easyfix.at) are clearly inconsistent with current experience. In addition, it follows from an extract from the Austrian register of domain names (nic.at GmbH) that the domain name ‘www.easyfix.co.at’ is definitely not registered. The applicant therefore disputes that the page entitled ‘Preisauszeichnung’ (pricing display) and also bearing the page number 2 in that catalogue was really published and disclosed before the date on which the application for registration of the design at issue was filed.
14 By the third complaint, the applicant takes issue with the Board of Appeal for having concluded, in paragraph 18 of the contested decision, that the catalogue produced in Annex B to the application for a declaration of invalidity had been published in 2010, on the ground that the page entitled ‘Editorial’ stated that the catalogue had been ‘issued in time for the Automechanika 2010 trade fair’. In the applicant’s submission, that could not even prove that that promotional document was published, still less in what collection and on what date. It adds that, even if the catalogue in question was a bound catalogue of which EUIPO sent it only a disorganised copy, that does not prove that the catalogue was published earlier with the content presented.
15 By the fourth complaint, the applicant claims that, in paragraph 19 of the contested decision, the Board of Appeal was wrong to take as established an earlier publication of the document produced in Annex C to the application for a declaration of invalidity, when that document had correctly not been taken into account by the Invalidity Division and when it might have related to a draft catalogue addressed to a company connected with EasyFix and not made available to the public.
16 By the fifth plea, the applicant claims that, in paragraph 21 of the contested decision, the Board of Appeal was wrong to assert that the illustrations in the documents produced in Annexes A to D to the application for a declaration of invalidity all contained the same datasheet of a BMW 520i Touring and was also wrong to infer that for that reason the display holders for vehicles reproduced in paragraph 4 of the contested decision all related to the same earlier design. In the applicant’s submission, the use of an identical (model) text does not reveal whether the promotional documents were even published only with the illustration in question, whether they were published in the collection communicated and the date on which they were published. The applicant assumes that this was a fictional offer text also used by other undertakings and produces in an annex, by way of example, a current copy of the same offer text which is used by another supplier of display holders for another make of cars.
17 By the sixth complaint, the applicant alleges that the Board of Appeal, in paragraphs 22 and 31 to 35 of the contested decision, proceeded from the incorrect assumption that all the documents produced in Annexes A to E to the application for a declaration of invalidity showed one and the same ‘earlier design’. It maintains that Annex E is different from Annexes B and C, particularly in that the design represented shows, between the flap part and the display part, a very marked thickened bar that links the flap with the display board.
18 By the seventh complaint, the applicant takes issue with the Board of Appeal for having considered, in paragraph 33 of the contested decision, that the designs at issue consisted of a transparent surface. While it accepts that the ‘earlier design’ in Annexes A to D to the application for a declaration of invalidity is completely transparent, not only in the part intended for the datasheet, but also in the flap that constitutes the lower part, it maintains that the contested design is not really transparent, as shown in ‘view 1’, with, in particular, the use of hatching.
19 EUIPO disputes the applicant’s arguments.
20 According to the first sentence of Article 7(1) of Regulation No 6/2002, ‘for the purpose of applying Articles 5 and 6 [of that regulation], [an earlier] design shall be deemed to have been made available to the public if it has been published following registration or otherwise, or exhibited, used in trade or otherwise disclosed, before the date [of filing of the application for registration of the design at issue] or, [if priority is claimed, before the date of priority,] except where these events could not reasonably have become known in the normal course of business to the circles specialised in the sector concerned, operating within the [European Union]’.
21 Neither Regulation No 6/2002 nor Commission Regulation (EC) No 2245/2002 of 21 October 2002 implementing Regulation No 6/2002 (OJ 2002 L 341, p. 28) specifies the mandatory form of the evidence that must be adduced by the invalidity applicant to show that the earlier design was disclosed before the date on which the application for registration of the design at issue was filed. It follows that, first, an applicant for a declaration of invalidity is free to choose the evidence which it considers useful to submit to EUIPO in support of its application for a declaration of invalidity and, second, EUIPO is obliged to examine all the evidence submitted to it in order to determine whether it actually proves disclosure of the earlier design (see, to that effect, judgments of 9 March 2012, Coverpla v OHIM – Heinz-Glas (Phial), T‑450/08, not published, EU:T:2012:117, paragraphs 22 and 23 and the case-law cited; of 14 July 2016, Thun 1794 v EUIPO – Adekor (Decorative graphical symbols), T‑420/15, not published, EU:T:2016:410, paragraph 26; and of 25 April 2018, Euro Castor Green v EUIPO – Netlon France (Concealed trellis), T‑756/16, not published, EU:T:2018:224, paragraph 32).
22 Furthermore, the disclosure of an earlier design cannot be proved by means of probabilities or suppositions, but must be demonstrated by solid and objective evidence of effective disclosure of the earlier design on the market. In addition, the items of evidence supplied by the invalidity applicant must be assessed in relation to each other. If some of that evidence may be insufficient in itself to demonstrate the disclosure of an earlier design, the fact nonetheless remains that, when it is associated or read with other documents or information, it may contribute to forming proof of the disclosure. Last, in order to assess the probative value of a document, it is necessary to verify the likelihood and the veracity of the information which it contains. It is necessary to take account, in particular, of the origin of the document, the circumstances in which it was drawn up and the person to whom it was addressed, and also to ask whether, according to its content, it seems to be sound and reliable (see judgment of 9 March 2012, Phial, T‑450/08, not published, EU:T:2012:117, paragraphs 24 to 26 and the case-law cited; judgments of 14 July 2016, Decorative graphical symbols, T‑420/15, not published, EU:T:2016:410, paragraph 27; and of 25 April 2018, Trellis, T‑756/16, not published, EU:T:2018:224, paragraph 33).
23 A design is therefore deemed to have been disclosed once the party relying on that disclosure has proved the events constituting disclosure. In order to rebut that presumption, the party challenging the disclosure must establish to the requisite legal standard that the circumstances of the case could reasonably prevent those facts from becoming known in the normal course of business to the circles specialised in the sector concerned operating within the European Union (see, to that effect, judgments of 21 May 2015, Senz Technologies v OHIM – Impliva (Umbrellas), T‑22/13 and T‑23/13, EU:T:2015:310, paragraph 26; of 15 October 2015, Promarc Technics v OHIM – PIS (Part of door), T‑251/14, not published, EU:T:2015:780, paragraph 26; and of 27 February 2018, Gramberg v EUIPO – Mahdavi Sabet (Case for a mobile telephone), T‑166/15, EU:T:2018:100, paragraph 22).
24 In order to establish that an earlier design has been disclosed, it is thus necessary to carry out an analysis in two stages, consisting in examining, in the first place, whether the evidence submitted in the application for a declaration of invalidity shows, on the one hand, facts constituting disclosure of a design and, on the other hand, that that disclosure occurred earlier than the date of filing or priority of the design at issue and, in the second place, where the holder of the design at issue has claimed the contrary, whether those facts could reasonably become known in the normal course of business to the circles specialised in the sector operating within the European Union, failing which a disclosure will be considered to have no effects and will not be taken into account.
25 It is in the light of those considerations that the Court must consider whether, in the present case, the Board of Appeal was correct to find that the evidence submitted by EasyFix in the application for a declaration of invalidity was suitable for establishing the disclosure of a design and that that disclosure had taken place earlier.
26 As a preliminary point, it should be noted that, in the circumstances of the present case, the date to be taken into consideration for the purpose of assessing the priority of the disclosure is the date on which the application for registration of the design at issue was filed, namely, as stated in paragraph 1 above, 28 November 2013 (‘the relevant date’).
27 In paragraphs 17 to 22 of the contested decision, the Board of Appeal considered that the document produced in Annex B to the application for a declaration of invalidity was the original of a sales catalogue and that whether the cover page really belonged to the rest of the pages of that catalogue was irrelevant for the evaluation of the facts. It observed that, on page 2 of that catalogue, there appeared the design used for comparison, as reproduced in paragraph 4 above, and that, in the editorial of the catalogue, which was on page 1 and thus on the same page as the illustration, it was stated that the catalogue ‘ha[d] been issued in time for the Automechanika 2010 trade fair’. The Board of Appeal inferred that the catalogue had been published in 2010, stating that the determination of a precise date of publication was not necessary, since registration of the design at issue had been applied for in November 2013. It observed, moreover, that the editorial referred to the fact that ‘the redesigned website www.easyfix.at [was] to go online’ and that that explained in inconsistency between the domain name used on the cover page and that used on page 2. In addition, the Board of Appeal stated that it had no doubt that the document produced in Annex C to the application for a declaration of invalidity, namely the copy of part of a catalogue, was from 2011; that the schematic reproduction in the document produced in Annex E to that application, relating to the utility model, had been published in the German Patent Journal in February 2012, and thus made available to the public no later than that date; that the display holders for vehicles reproduced in paragraph 4 above all related to the same design; and that the illustrations in Annexes A to D to that application all contained the same datasheet of a BMW 520i Touring. It concluded that the documents produced in Annexes A to E to the application for a declaration of invalidity were suitable for providing evidence of the disclosure of the claimed earlier design, within the meaning of Article 7(1) of Regulation No 6/2002.
28 The Court considers it appropriate to examine at the outset the second to fourth complaints, concerning the assessment of the probative value of the documents produced in Annexes B and C to the application for a declaration of invalidity.
29 As regards the second complaint, whereby the applicant calls into question the probative value of the document produced in Annex B to the application for a declaration of invalidity, it is appropriate to provide the following clarification concerning that annex, the original of which the Court was able to consult in the hard copy of the Board of Appeal’s case file. In that file, Annex B actually contains not one catalogue but two catalogues: first, EasyFix’s ‘2010/11’ catalogue, consisting of 128 pages and two cardboard cover pages, and, second, EasyFix’s ‘News 2010’ catalogue, consisting of 31 numbered pages and a final unnumbered page. It is extracts from those two catalogues that the applicant annexed to the application.
30 It is apparent from the documents in the file that, in the application for a declaration of invalidity, EasyFix referred to two catalogues called ‘EasyFix 2010/11’ and ‘EasyFix News 2010’, which it presented as being its catalogues (‘unseren Katalogen’), and that, in an annex to that application, it attached the originals of those two catalogues. EUIPO forwarded that application to the applicant by registered post, with a scanned copy of the annexes, consisting of 210 pages.
31 Admittedly, it must be stated that, as EUIPO observes in paragraph 26 of its response, the Board of Appeal’s electronic file, as scanned and communicated to the applicant, does not reproduce in their proper order the pages of the two catalogues referred to in paragraphs 29 and 30 above, for an unknown reason.
32 However, it must be pointed out that all the pages of those two catalogues were thus communicated, in a scanned copy, to the applicant. Furthermore, in the pleading setting out the grounds of appeal before the Board of Appeal, the applicant cited EasyFix’s reference to the catalogues produced in Annex B to the application for a declaration of invalidity as being ‘[its] ‘EasyFix 2010/11’ and ‘EasyFix News 2010’ ‘catalogues’, and the applicant cannot therefore validly claim to have been unaware that Annex B consisted of two catalogues, and not a single catalogue.
33 Apart from that clarification, it should be observed that it is on page 2 of EasyFix’s ‘2010/2011 catalogue’ (and on page 212 of the Board of Appeal’s electronic file), entitled ‘Preisauszeichnung’ (pricing display), that the image reproduced in paragraph 4 of the contested decision and in paragraph 4 above, and presented as disclosure of the earlier design, appears.
34 In that regard, it is sufficient to state, first of all, as regards proof of the facts constituting the disclosure, that page 2 of the ‘2010/11 catalogue’, which features a representation of the display holder for vehicles reproduced in paragraph 4 of the contested decision in connection with Annex B to the application for a declaration of invalidity, allowed the Board of Appeal to find that that design had been made available. Next, as regards proof of the priority of that disclosure, page 1 of that catalogue, on the other side of page 2, containing the editorial and the dates mentioned therein, namely ‘Zoom Start der Automechanika 2010’ (for the beginning of Automechanika 2010) and ‘Ab 2011 werden in Deutschland’ (in Germany from 2011), allowed the Board of Appeal to conclude, without making an error of assessment of the evidence, that the disclosure of that design had occurred in 2010 or, at the latest, in 2011, but in any event before the relevant date of 28 November 2013. That is a fortiori the case because the evidence of the constituent facts and the priority of that disclosure are corroborated by page 3 of the ‘News 2010’ catalogue produced in Annex B and by the extract from AHB’s 2011 catalogue in Annex C to the application for a declaration of invalidity.
35 Furthermore, it must be considered that, as EUIPO submits in paragraph 29 of the response, there is no requirement to produce every page of a catalogue as proof, but that extracts from such a catalogue may be produced, without the probative value in itself of the pages produced necessarily being reduced. Thus, in the light of all the proof produced, in particular of pages 1 and 2 of the ‘2010/11 catalogue’, the Board of Appeal was not required to make a separate assessment of the cover page of that catalogue.
36 In addition, it should be observed that the layout, the colour and the content of the different pages coincide in a way that makes it possible to draw the conclusion that they were assembled in the linked catalogues called ‘2010/11 catalogue’ and ‘News 2010’, as EasyFix maintained. Whatever the reason for the discrepancy between the domain names indicated on page 1 of the catalogue containing the editorial and page 2 of the catalogue reproducing the earlier design, namely ‘www.easyfix.at’, on the one hand, and ‘www.easyfix.co.at’, on the other hand, that does not preclude the two pages being from the same ‘2010/11 catalogue’, since the two pages formed the front and rear of the same sheet. The extract from the Austrian register of domain names annexed to the application is therefore irrelevant.
37 In so far as at the hearing the applicant merely expressed doubts as to the very existence and the authenticity of the catalogues on which EasyFix relied, it must be stated that such doubts do not suffice to call into question the body of consistent evidence, in particular EasyFix’s catalogues and AHB’s catalogue, adduced by EasyFix and relied on by the Board of Appeal when it concluded that there was proof of the facts constituting disclosure, a fortiori because the applicant’s allegations of a potential manipulation of the catalogues produced by EasyFix are not established and because the argument which it derives from the absence of a declaration on oath runs counter to the freedom to choose the evidence enjoyed by the invalidity applicant (see, to that effect, judgment of 17 May 2018, Basil v EUIPO – Artex (Bicycle baskets), T‑760/16, EU:T:2018:277, paragraphs 47 to 49 and 53).
38 In any event, the Court, which has in its possession the hard copy of the Board of Appeal’s file, notes the existence and the continuous numbering of both of EasyFix’s original catalogues produced in Annex B to the application for a declaration of invalidity. Furthermore, at the hearing, the applicant was able to consult the originals of those two catalogues. At the Court’s invitation, it confirmed the presence, in the originals of the ‘2010/11 catalogue’, on page 2, of photographs of the product relied by EasyFix and, on the other side of that page, that is to say on page 1, references to 2010 and 2011, and also the co-existence, on that same double-sided sheet, of the domain names ‘www.easyfix.at’ and ‘www.easyfix.co.at’. The applicant also confirmed the presence, in the original of EasyFix’s other catalogue, entitled ‘News 2010’, on page 3, of the product relied on by EasyFix, with the date ‘31 August 2010’ at the foot of the page. Those confirmations were noted in the minutes of the hearing.
39 Ultimately, while it is regrettable that EUIPO’s administrative services communicated to the applicant the two catalogues produced in Annex B to the application for a declaration of invalidity with non-continuous numbering that did not correspond to the order of the pages of the original catalogues, such a circumstance cannot call into question the legality of the contested decision as regards proof of the constituent facts and the priority of the disclosure of the display holder for vehicles reproduced in paragraph 4 of the contested decision in connection with Annex B and, in particular, the probative value of those documents for the purpose of establishing the disclosure of the earlier design.
40 The second complaint must therefore be rejected.
41 As for the third complaint, whereby the applicant takes issue with the Board of Appeal for having drawn a conclusion from the reference to the Automechanika 2010 trade fair in the editorial in the ‘2010/11 catalogue’ produced in Annex B to the application for a declaration of invalidity, it must be considered that the fact that that editorial mentions that international trade fair and appears on page 1 of that catalogue, on the front of page 2 of that catalogue, where the representation of the display holder for vehicles reproduced in paragraph 4 of the contested decision in connection with Annex B appears, makes it possible to date the disclosure of that design as having occurred in 2010 or, at the latest, in 2011. Furthermore, it must be observed that each of the two catalogues produced in Annex B must be evaluated as a whole and in conjunction with all the proof adduced, in accordance with the case-law cited in paragraph 22 above, and may therefore be dated with certainty before the relevant date. In addition, the applicant puts forward no evidence that would give rise to doubt that the catalogues were actually distributed in 2010, with a view to that international trade fair in the case of the second catalogue, or at the latest in 2011.
42 As for the fourth plea, whereby the applicant asserts, in particular, that the Invalidity Division was correct to disregard the document produced in Annex C to the application for a declaration of invalidity, it should be observed, first of all, that in its decision of 3 June 2016 the Invalidity Division did not consider that that document was unsuitable for contributing to proof of a disclosure of the display holder for vehicles at issue in the overall assessment, but merely considered that the facts constituting disclosure and the fact that that disclosure had occurred before the relevant date were already proved on the basis of other factors. In addition, it must be stated that, in the overall evaluation of the proof, that document is also a relevant factor. In fact, that extract from AHB’s catalogue shows on the same cover page both that display holder for vehicles and the year 2011. Nor is there anything to support the applicant’s allegation that it is normal practice to exchange unpublished catalogues within a group of undertakings to which EasyFix belonged.
43 It must be concluded, in the light of all of the foregoing, that the facts constituting the disclosure of the display holder for vehicles on page 2 of EasyFix’s ‘2010/11 catalogue’ and reproduced in paragraph 4 of the contested decision in connection with Annex B to the application for a declaration of invalidity (see paragraph 4 above) were sufficiently proved in that catalogue, as was the fact that that disclosure occurred at an earlier date. That proof is also corroborated by additional factors, such as EasyFix’s ‘News 2010’ catalogue, which also appears in Annex B, and the extract from AHB’s catalogue produced in Annex C to the application for a declaration of invalidity. The Board of Appeal was therefore correct to consider that the facts constituting the disclosure of a design and the priority in time of that disclosure were established with regard to Annexes B and C, which contain dated catalogues.
44 It follows that the first, fifth, sixth and seventh complaints, relating to the documents produced in Annexes A, D and E to the application for a declaration of invalidity or to view 1 of the design at issue, must be rejected as ineffective.
45 For all of those reasons, the applicant’s complaints do not enable the legality of the contested decision to be called into question as regards the assessment of the evidence relating to the facts constituting the disclosure of the design and to the priority in time of that disclosure by reference to the relevant date. Nor has the applicant demonstrated, or even claimed, that the circumstances of the present case could reasonably prevent those facts from being known to circles reasonably have become known in the normal course of business to the circles specialised in the sector concerned, operating within the European Union. Given the absence of indications to the contrary that would have made it possible to consider that those catalogues had not been distributed within those specialised circles, the Board of Appeal did not err when it concluded that there had been a disclosure of the earlier design.
46 The first plea must therefore be rejected as unfounded.
Second plea: breach of the right to be heard, in accordance with the second sentence of Article 62 of Regulation No 6/2002
47 The applicant claims that the Board of Appeal infringed its right to be heard by not giving it the opportunity to present its comments on the documents produced in Annexes A and D to the application for a declaration of invalidity before relying on them in the contested decision (notably in paragraphs 31 to 35),unlike the Invalidity Division, which had not taken those documents into account on the ground that they were ‘undated photographs’, as their date of printing was later than the date on which the contested design was filed. The applicant claims that if the Board of Appeal had given it the opportunity to express its views it would have been able to submit that there had been no effective earlier publication and would, moreover, have been able to ‘defend itself against [those annexes] as well.
48 EUIPO disputes the applicant’s arguments.
49 According to the second sentence of Article 62 of Regulation No 6/2002, EUIPO’s decisions may be based only on reasons or evidence on which the parties concerned have had an opportunity to present their comments. That provision enshrines, in the context of the law applicable to Community designs, the general principle of respect for the rights of the defence. According to that general principle of EU law, a person whose interests are significantly affected by a decision addressed to him and taken by a public authority must be given the opportunity to make his point of view known. The right to be heard extends to all the matters of fact or of law which form the basis of the decision, but not to the final position which the authority intends to adopt (see judgments of 27 June 2013, Beifa Group v OHIM – Schwan-Stabilo Schwanhäußer (Instruments for writing), T‑608/11, not published, EU:T:2013:334, paragraph 42 and the case-law cited; of 9 February 2017, Mast-Jägermeister v EUIPO (Beakers), T‑16/16, EU:T:2017:68, paragraph 57; and of 21 June 2018, Haverkamp IP v EUIPO – Sissel (Foot mat), T‑227/16, not published, EU:T:2018:370, paragraph 67).
50 In the present case, it should be observed, by way of preliminary point, that the Invalidity Division did not characterise the documents produced in Annexes A and D to the application for a declaration of invalidity as irrelevant evidence on the ground that they were ‘undated photographs’. On the contrary, the Invalidity Division established the disclosure of the earlier design on the basis of other evidence and there was thus no need to deal with those annexes separately (see paragraph 43 above).
51 Next, it should be observed that the Board of Appeal was entitled to base the contested decision on a comparison of the contested design and the design reproduced in the documents produced in Annexes A and D to the application for a declaration of invalidity. Indeed, it follows from Article 60(1) of Regulation No 6/2002 that, through the effect of the appeal before it, the Board of Appeal is called upon to carry out a new, full examination of the merits of the application for a declaration of invalidity, in terms of both law and fact. That means that the Board of Appeal may base its decision on any of the earlier designs raised by the invalidity applicant, without being bound by the decision of the Invalidity Division and without having to provide specific reasons in that regard (see, to that effect, judgment of 14 June 2011, Sphere Time v OHIM – Punch (Watch attached to a lanyard), T‑68/10, EU:T:2011:269, paragraph 13 and the case-law cited). In the present case it is not disputed that the documents produced in Annexes A and D were relied on by EasyFix in support of the application for a declaration of invalidity.
52 In those circumstances, in accordance with the applicant’s right to be heard, it was for the Board of Appeal to give it the opportunity to make comments on all the relevant elements of fact and of law in the file; and the applicant had ample opportunity to do so throughout the proceedings, including with regard to the documents produced in Annexes A and D to the application for a declaration of invalidity.
53 Conversely, according to the established case-law cited in paragraph 49 above, the Board of Appeal was not required, before adopting the contested decision, to hear the applicant’s views on the final position which it intended to adopt, an integral part of which was the assessment of the documents produced in Annexes A and D to the application for a declaration of invalidity.
54 The second plea must therefore be rejected as unfounded.
Third plea: breach of the obligation to state reasons, in accordance with the first sentence of Article 62 of Regulation No 6/2002
55 The applicant claims that the Board of Appeal breached its obligation to state reasons by stating, without the slightest justification, in paragraph 19 of the contested decision, that it had no doubt that the document produced in Annex C to the application for a declaration of invalidity dated from 2011, when the applicant had previously disputed that the documents produced in Annexes A to C to that application had been published previously and had also provided evidence showing that such earlier publication had not taken place. Since the Board of Appeal also based the contested decision (in particular in paragraphs 22, 31, 32 and 35) on the illustration in Annex C, it ought to have explained why it considered, contrary to the observations put forward by the applicant, that the document produced in that annex had been the subject of a previous publication and constituted proof of the earlier disclosure.
56 EUIPO disputes the applicant’s arguments.
57 Under the first sentence of Article 62 of Regulation No 6/2002, EUIPO’s decisions are to state the reasons on which they are based. That obligation to state reasons has the same scope as the obligation arising under Article 296 TFEU, according to which the reasoning followed by the institution which adopted the measure must be stated in a clear and unequivocal manner. That obligation has two purposes: to allow interested parties to know the justification for the measure adopted so as to enable them to defend their rights and to enable the EU Courts to exercise their power to review the legality of the decision (see judgment of 25 April 2013, Bell & Ross v OHIM – KIN (Wristwatch case), T‑80/10, not published, EU:T:2013:214, paragraph 37 and the case-law cited). The question whether the statement of reasons for a decision satisfies those requirements must be assessed by reference not only to its wording but also to its context and the entire body of legal rules governing the matter in question (judgments of 9 February 2017, Beakers, T‑16/16, EU:T:2017:68, paragraph 58, and of 14 March 2018, Gifi Diffusion v EUIPO – Crocs (Footwear), T‑424/16, not published, EU:T:2018:136, paragraph 29).
58 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 review (judgments of 25 April 2013, Wristwatch case, T‑80/10, not published, EU:T:2013:214, paragraph 37; of 4 July 2017, Murphy v EUIPO – Nike Innovate (Electronic wristband), T‑90/16, not published, EU:T:2017:464, paragraph 19; and of 29 November 2018, Sata v EUIPO – Zhejiang Auarita Pneumatic Tools (Paint spray gun), T‑651/17, not published, EU:T:2018:855, paragraph 21). Reasons that are not made explicit may thus be taken into account if they are obvious, both to the persons concerned and to the competent court (see judgment of 14 March 2018, Footwear, T‑424/16, not published, EU:T:2018:136, paragraph 35 and the case-law cited).
59 In the present case, it should be observed that Annex C to the application for a declaration of invalidity contains a copy of the cover of an AHB catalogue dated 2011, on which the earlier design and the title ‘Katalog 2011’ (2011 catalogue’) appear. That is why the Board of Appeal, in paragraph 4 of the contested decision, described the document produced in that annex as the ‘copy of a third-party company’s catalogue from 2011 (extracts)’, which is known to and not disputed by the applicant. That is also why, in paragraph 19 of the contested decision, the Board of Appeal could state that it ‘ha[d] no doubt that [the document produced in] Annex C, the copy of part of a catalogue, [came] from 2011’. That assertion is obvious on consulting that document, which bears the reference ‘2011 catalogue’ and was communicated to the applicant. In that context, no supplementary reasoning was required. Furthermore, according to the case-law cited in paragraph 58 above, reasons that are not made explicit may be taken into account if they are obvious, both to the persons concerned and to the competent court. That is clearly the case here, as regards the reference to ‘2011’ on the document produced in Annex C.
60 In addition, it should be borne in mind that the Board of Appeal did not base its conclusion on the disclosure of priority solely on the document produced in Annex C to the application for a declaration of invalidity, but that that document is only one factor in the assessment of all of the evidence produced, relevant in particular for the time of disclosure. In fact, the main piece of evidence of that disclosure is the document produced in Annex B to the application for a declaration of invalidity (see paragraphs 42 and 43 above).
61 The third plea must therefore be rejected as unfounded.
Fourth plea: incorrect assessment of the individual character of the design at issue, contrary to Article 6 and Article 25(1)(b) of Regulation No 6/2002
62 By the fourth plea, the applicant takes issue with the Board of Appeal for having incorrectly assessed the individual character of the design at issue. This plea consists of two complaints, relating, first, to the degree of freedom of the designer in developing the design and, second, to the comparison of the designs at issue, having regard to the attention which the informed user pays to the differences between them.
63 EUIPO disputes the applicant’s arguments.
64 Under Article 25(1)(b) of Regulation No 6/2002, a Community design may be declared invalid only in the cases set out in that provision, in particular if it does not fulfil the requirements of Articles 4 to 9 of that regulation. It should be pointed out that, unlike the grounds for invalidity referred to in Article 25(1)(c) to (g), the grounds for invalidity referred to in subparagraphs (a) and (b) may, in principle, be relied on by any person.
65 In the words of Article 4(1) 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. According to Article 6(1)(b) of that regulation, a design is to be considered to have individual character if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public before the date on which the design for which protection is claimed has first been made available to the public or, if priority is claimed, before the date of priority. Article 6(2) of that regulation further provides that, in assessing individual character, the degree of freedom of the designer in developing the design is to be taken into consideration. Recital 14 of that regulation states that, when assessing the individual character of a design by reference to the existing design corpus, it is necessary to take into account the nature of the product to which the design is applied or in which it is incorporated, and in particular the industrial sector to which it belongs.
66 According to the case-law, it follows from the foregoing provisions that the assessment of the individual character of a Community design is carried out, in essence, in four stages. That examination consists in deciding upon, first, the sector to which the products in which the design is intended to be incorporated or to which it is intended to be applied belong; second, the informed user of those products in accordance with their purpose and, with reference to that informed user, the degree of awareness of the prior art and the level of attention to the similarities and the differences in the comparison of the designs; third, the designer’s degree of freedom in developing his design, the influence of which on individual character is in inverse proportion; and, fourth, taking that degree of freedom into account, the outcome of the comparison, direct if possible, of the overall impressions produced on the informed user by the contested design and by any earlier design which has been made available to the public, taken individually (see, to that effect, judgments of 7 November 2013, Budziewska v OHIM – Puma (Bounding feline), T‑666/11, not published, EU:T:2013:584, paragraph 21 and the case-law cited; of 10 September 2015, H&M Hennes & Mauritz v OHIM – Yves Saint Laurent (Handbags), T‑525/13, EU:T:2015:617, paragraph 32; and of 21 June 2018, Foot mat, T‑227/16, not published, EU:T:2018:370, paragraph 22).
67 In the present case, it is common ground that the sector concerned by the designs at issue is the ‘display holders, signboards for vehicles’ sector. It is appropriate to examine, in turn, the informed user, the designer’s degree of freedom and the comparison of the overall impressions produced by those designs.
The informed user
68 The applicant puts forward no specific complaint with respect to the informed user as defined by the Board of Appeal. However, in paragraphs 49 and 55 of the application, it disputes the Board of Appeal’s assertion that the informed user would not pay ‘any particular attention’ to certain differences, which does not take that user’s ‘degree of knowledge’ into account. It is therefore appropriate to determine the degree of knowledge and the level of attention of the informed user, which determine his ability to perceive differences between the designs at issue.
69 According to the case-law on the concept of ‘informed user’, the status of ‘user’ implies that the person concerned, whether he is an end user or a business purchaser, uses the product in which the design is incorporated in accordance with the purpose for which that product is intended. Furthermore, 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. However, that factor does not imply that the informed user is able to distinguish, beyond the experience gained by using the product concerned, the aspects of the appearance of the product which are dictated by the product’s technical function from those which are arbitrary (see, to that effect, judgment of 20 October 2011, PepsiCo v Grupo Promer Mon Graphic, C‑281/10 P, EU:C:2011:679, paragraph 59; see also, to that effect, judgments of 22 June 2010, Shenzhen Taiden v OHIM – Bosch Security Systems (Communications equipment), T‑153/08, EU:T:2010:248, paragraphs 46 to 48, and of 21 June 2018, Foot mat, T‑227/16, not published, EU:T:2018:370, paragraph 37).
70 The concept of ‘informed user’ must therefore be understood as a concept lying somewhere between that of the ‘average consumer’ in trade mark matters, who need not have any specific knowledge and who, as a rule, owing to his imperfect recollection, makes no direct comparison between the trade marks at issue, and the ‘sectoral expert’ in patent law, who is an expert with detailed technical expertise. Thus, the concept of informed user may be understood as referring, not to a user of average attention, but to a particularly observant one, whether because of his personal experience or his extensive knowledge of the sector in question (judgments of 20 October 2011, PepsiCo v Grupo Promer Mon Graphic, C‑281/10 P, EU:C:2011:679, paragraph 53; of 21 June 2018, Foot mat, T‑227/16, not published, EU:T:2018:370, paragraph 36; and of 29 November 2018, Paint spray gun, T‑651/17, not published, EU:T:2018:855, paragraph 20). As regards the informed user’s level of attention, although the informed user is not the well-informed and reasonably observant and circumspect average consumer who normally perceives the 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 at issue (see, to that effect, judgment of 20 October 2011, PepsiCo v Grupo Promer Mon Graphic, C‑281/10 P, EU:C:2011:679, paragraph 59).
71 In the present case, the Board of Appeal, in paragraph 26 of the contested decision, defined informed users of the designs at issue as business people who wanted to price their goods, as well as people in the purchasing departments of companies who purchase such information boards for pricing, namely display holders for vehicles. It should be stated that that definition, which, moreover, is not disputed by the applicant, is free of errors.
72 As regards the informed user’s degree of knowledge and level of attention, it follows in particular from the case-law cited in paragraphs 69 and 70 above, and also in paragraph 25 of the contested decision, that, even if the reference person has a certain degree of knowledge as regards the different designs that exist in the sector concerned and displays a relatively high level of attention and particular vigilance when he uses them, he is also not an expert or specialist, such as a sectoral expert, capable of observing in detail the minimal differences that may exist between the designs at issue.
The designer’s degree of freedom
73 By its first complaint, the applicant takes issue with the Board of Appeal for having considered, in paragraph 27 of the contested decision, that the designer’s freedom in designing ‘information boards [or display holders], signboards for vehicles’, with respect to both the shape and the material used, was ‘extensive’. In the applicant’s contention, that degree of freedom is very low and subject to limitations as to shape and size. Since the paper to be inserted in the displays contains data relating to the vehicle and information about the price, a rectangular basic shape is required. Likewise, as regards the size and dimensions, these should necessarily be understood as being between a minimum A4 format for visibility and a maximum format that would depend on the respective dimensions of the vehicle windows on the internal surface of which the display holder would be attached. Thus, the designer’s degree of freedom is broadly limited, first, by the intended use (the insertion of a sheet of paper of a minimum A4 format, on which appear data concerning the vehicle and information about the price) and, second, by the respective dimensions of the vehicle windows.
74 According to the case-law, the designer’s degree of freedom in developing his design is established, in particular, by the constraints of the features imposed by the technical function of the product or an element thereof, or by statutory requirements applicable to the product. Those constraints result in a standardisation of certain features, which will thus be common to several designs applied to the product concerned (judgments of 18 March 2010, Grupo Promer Mon Graphic v OHIM – PepsiCo (Representation of a circular promotional item), T‑9/07, EU:T:2010:96, paragraph 67; of 9 September 2011, Kwang Yang Motor v OHIM – Honda Giken Kogyo (Internal combustion engine), T‑10/08, EU:T:2011:446, paragraph 32; and of 21 June 2018, Foot mat, T‑227/16, not published, EU:T:2018:370, paragraph 54).
75 However, a general design trend cannot be regarded as a factor which restricts the designer’s freedom, since it is precisely that freedom on the part of the designer that allows him to discover new shapes and new trends or even to innovate in the context of an existing trend (judgment of 13 November 2012, Antrax It v OHIM – THC (Radiators for heating), T‑83/11 and T‑84/11, EU:T:2012:592, paragraph 95). In fact, the question whether a design does or does not follow a general design trend is relevant, at the most, in relation to the aesthetic perception of the design concerned and can therefore, possibly, have an influence on the commercial success of the product in which the design is incorporated. By contrast, such a question is not relevant in the examination of the individual character of the design concerned, which consists in verifying whether the overall impression produced by it differs from the overall impressions produced by the designs made available earlier, irrespective of the aesthetic or commercial considerations (judgments of 22 June 2010, Communications equipment, T‑153/08, EU:T:2010:248, paragraph 58; of 4 February 2014, Sachi Premium-Outdoor Furniture v OHIM – Gandia Blasco (Armchair), T‑357/12, not published, EU:T:2014:55, paragraph 24; and of 17 November 2017, Ciarko spółka z ograniczoną odpowiedzialnością v EUIPO – Maan (Cooker hood), T‑684/16, not published, EU:T:2017:819, paragraph 58).
76 The factor relating to the designer’s freedom in developing the design at issue cannot on its own determine the assessment of the individual character of a design, but it may serve to moderate that assessment (see, to that effect, judgments of 10 September 2015, Handbags, T‑525/13, EU:T:2015:617, paragraph 35, and of 4 July 2017, Electronic wristband, T‑90/16, not published, EU:T:2017:464, paragraph 38). In fact, its influence on individual character varies according to a rule of inverse proportionality. Thus, the greater the designer’s freedom, the less likely it is that minor differences between the designs at issue will be sufficient to produce a different overall impression on an informed user. Conversely, the more the designer’s freedom is restricted, the more likely it is that minor differences between the designs at issue will be sufficient to produce a different overall impression on an informed user. In other words, if the designer enjoys a high degree of freedom in developing a design, that reinforces the conclusion that the designs which do not have significant differences produce the same overall impression on an informed user and, accordingly, the contested design does not display an individual character. Conversely, if the designer has a low degree of freedom, that reinforces the conclusion that the sufficiently marked differences between the designs produce a dissimilar overall impression on the informed user and, accordingly, the contested design displays an individual character (see, to that effect, judgments of 9 September 2011, Internal combustion engine, T‑10/08, EU:T:2011:446, paragraph 33; of 13 November 2012, Radiators for heating, T‑83/11 and T‑84/11, EU:T:2012:592, paragraph 45; and of 21 June 2018, Foot mat, T‑227/16, not published, EU:T:2018:370, paragraph 54).
77 In the present case, the Board of Appeal considered, in paragraphs 27 to 29 of the contested decision, that the designer’s freedom in developing ‘display holders, signboards for vehicles’ was extensive, with respect to both the shape and the material used. It considered that a display holder for vehicles can have any geometric shape, as long as it allows information to be put on it; it may have not only a basic rectangular shape, but may also be square, circular or elliptical, and the rectangular shape is attributable to the free choice of the designer, which is not predetermined either by the market or by other reasons or constraints. The Board of Appeal considered that the same applied to the choice of material and that, in that respect, the use of plastic already represented a free choice of the designer, which was not predetermined either by the market or by other reasons or constraints; at least, it observed, the parties had not presented any evidence that would contradict that finding.
78 In that regard, it must be stated that the applicant’s arguments to the contrary certainly lack conviction. As regards the size or the dimensions of the display holders for vehicles, they cannot restrict the designer’s freedom in the present case. In particular, there is nothing in the file to prove that the technical sheets included in such display holders must necessarily be of A4 format. Even if that format were normal on the market, that would not result in a relevant restriction of the designer’s freedom. In fact, according to the case-law cited in paragraph 75 above, a general trend to use technical sheets of A4 format and to design the products accordingly is irrelevant in the context of the examination of the individual character of the design. Nor has the applicant established or even claimed the existence of constraints linked with the characteristics imposed by the constraints of the features imposed by the technical function of the product or an element thereof, or by statutory requirements applicable to the product.
79 Furthermore, it should be borne in mind that the degree of the designer’s freedom is considered to be high or very high by the EU Courts where various configurations could be imagined for the same product (see, to that effect, judgment of 13 November 2012, Radiators for heating, T‑83/11 and T‑84/11, EU:T:2012:592, paragraphs 46 to 52), where the product may be made in a very wide variety of shapes, colours or materials (see, to that effect, judgment of 5 July 2017, Gamet v EUIPO – ‘Metal-Bud II’ Robert Gubała (Door handle), T‑306/16, not published, EU:T:2017:466, paragraphs 45 to 47), where the description of the product concerned is very wide, containing no detail as to its type or its functionality (see, to that effect, judgment of 15 October 2015, Promarc Technics v OHIM – PIS (Part of door), T‑251/14, not published, EU:T:2015:780, paragraph 55), or where the constraints of a functional nature concerning the presence of certain essential elements are not liable to affect to a significant extent the form or overall appearance of the product, which may take various forms and be arranged in various ways (see, to that effect, judgments of 14 June 2011, Watch attached to a lanyard, T‑68/10, EU:T:2011:269, paragraphs 68 and 69; of 21 November 2013, El Hogar Perfecto del Siglo XXI v OHIM – Wenf International Advisers (Corkscrew), T‑337/12, EU:T:2013:601, paragraphs 36 to 39; and of 29 October 2015, Roca Sanitario v OHIM – Villeroy & Boch (Single control handle faucet), T‑334/14, not published, EU:T:2015:817, paragraphs 45 to 52). That, in essence, is the case here, particularly as regards the shapes and the materials used.
80 It follows that the degree of the designer’s freedom in developing ‘display holders, signboards for vehicles’ is high, as regards both the shape and the size of the product and the material used, as the Board of Appeal correctly stated in paragraphs 27 to 29 of the contested decision.
81 The first complaint cannot therefore be upheld.
The comparison of the overall impressions
82 By the second complaint, the applicant takes issue with the Board of Appeal for finding, in paragraphs 33 and 34 of the contested decision, that the informed user does not pay any particular attention to the difference in the length/width ratio (in this instance a ratio of 2:1 or 2.2:1 instead of the A4 format) and the difference in shape of the flap in the lower part of the design at issue and in that of the designs relied on against the applicant. According to the applicant, the contested design has ‘an elongated aspect and almost an effect of elegant restraint’, ‘offers, in view of the low degree of development freedom allowed to the designer, the appearance of high quality’ and produces an ‘elegant impression of an elongated rectangle’ and ‘an effect of fragility, or restraint, non-aggressive, unlike the design in Annex E’, whereas the latter product gives a ‘heavy and crude impression’ and that the designs relied on in Annexes A to E are all ‘conceived in a crude and heavily disharmonious manner’ as regards the combination of the flap part and the table part which gives shape to the item as a whole, and produce a ‘crude and home-made impression’, ‘without refinement or elegance’.
83 According to settled case-law, the individual character of a design results from an overall impression of difference, or the 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 judgments of 7 November 2013, Bounding feline, T‑666/11, not published, EU:T:2013:584, paragraph 29 and the case-law cited; of 21 June 2018, Foot mat, T‑227/16, not published, EU:T:2018:370, paragraph 72; and of 29 November 2018, Paint spray gun, T‑651/17, not published, EU:T:2018:855, paragraph 39).
84 The assessment of the individual character of a design must be carried out in relation to one or more earlier designs, taken individually from among all the designs which have been made available to the public previously, and not in relation to a combination of isolated elements, taken from a number of earlier designs (see, to that effect, judgments of 19 June 2014, Karen Millen Fashions, C‑345/13, EU:C:2014:2013, paragraphs 25 and 35, and 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 61). The comparison of the overall impressions produced by the designs at issue must be synthetic and may not be limited to an analytic comparison of a list of similarities and differences. That comparison must take as a basis the characteristics disclosed in the contested design and must relate solely to the characteristics protected, without taking account of the characteristics excluded from the protection. The comparison must relate to the designs as registered and the invalidity applicant cannot be required to produce a graphic representation of the design relied on, comparable to the representation in the application for registration of the design at issue (see, to that effect, judgments of 7 November 2013, Bounding feline, T‑666/11, not published, EU:T:2013:584, paragraph 30 and the case-law cited; of 13 June 2017, Ball Beverage Packaging Europe v EUIPO – Crown Hellas Can (Cans), T‑9/15, EU:T:2017:386, paragraph 79; and of 17 November 2017, Cooker hood, T‑684/16, not published, EU:T:2017:819, paragraph 43).
85 In the present case, the Board of Appeal compared the following designs:
86 In paragraph 32 of the contested decision, the Board of Appeal did not take into consideration the information sheet reproduced in the documents produced in Annexes A to D of the application for a declaration of invalidity, because it was clear to the informed user that the display holders for vehicles were used for the individual display of prices, so that in the overall impression that user would accord no significance to the actual wording. In paragraph 33 of the contested decision, the Board of Appeal considered that both the contested design and the earlier design consisted of a transparent surface, under which a sheet could be placed; that their basic shape was rectangular, although there were certain differences in the length/width ratio; that both designs had a flap with a paraboloid shape at their lower extremity; and that, while in the earlier design the parabola intersected the rectangle at the edges, in the contested design the parabola was slightly towards the centre on the wide side of the rectangle. In paragraph 34 of the contested decision, the Board of Appeal considered, however, that those differences were minor and could not alter the overall impression conveyed by the two designs. It considered that the informed user would not pay any particular attention to the difference in the length/width ratio of the rectangle, especially because the flap was virtually identical in shape, and the fact that the flap ran over the whole of the lower side in the earlier design, unlike in the contested design, would scarcely be noticed.
87 In that regard, the Court considers that it is sufficient to take into consideration the earlier design reproduced in the documents produced in Annexes B and C to the application for a declaration of invalidity.
88 First of all, it should be observed that the overall impression produced on the informed user by the designs at issue is dominated by a rectangular shape with a transparent surface and a triangular flap on the lower edge. The synergy of those three fundamental characteristics produces a similar overall impression.
89 Next, it should be stated that the differences between the designs at issue, which lie in a marginally extended length/width ratio of the upper rectangular part and in a marginally more curved or paraboloid shape and a marginally more central position along the width of the lower triangular flap in the contested design, are relatively minimal.
90 It should be borne in mind that, in spite of his relatively high level of attention, the informed user does not observe in detail the minimal differences liable to exist between the designs at issue (see paragraph 72 above).
91 Those differences cannot therefore dispel the impression of ‘déjà vu’ conveyed by the designs at issue, having regard to their common elements, which form part of their most visible and most important elements (see, to that effect, judgments of 29 October 2015, Single control handle faucet, T‑334/14, not published, EU:T:2015:817, paragraph 74, and of 28 September 2017, Rühland v EUIPO – 8 seasons design (Lamp in the form of a star), T‑779/16, not published, EU:T:2017:674, paragraph 43).
92 It must therefore be concluded that such differences are insufficiently significant to produce, on their own, on the informed user a dissimilar overall impression from that produced by the earlier design, taking into consideration the designer’s high degree of freedom in developing the design. They are therefore incapable of conferring an individual character on the contested design.
93 Consequently, the Board of Appeal did not err when, taking into consideration in its assessment of the differences relied on by the applicant, it considered that the designs at issue produced the same overall impression on the informed user and that the contested design had no individual character.
94 The second complaint cannot therefore succeed.
95 Having regard to all of the foregoing considerations, the fourth plea must be rejected as unfounded and the action must therefore be dismissed in its entirety.
Costs
96 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, under Article 135(1) of those Rules of Procedure, if equity so requires, the General Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his own, or even that he is not to be ordered to pay any.
97 In the present case, the applicant is the unsuccessful party and EUIPO has expressly claimed that the applicant should be ordered to pay its costs. However, having regard to the circumstances of the present case, in particular to the fact that the pages of two catalogues communicated to the applicant by EUIPO were not presented in the correct order (see paragraphs 28 to 39 above), equity requires, in accordance with Article 135(1) of the Rules of Procedure, that each party bear its own costs.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1. Dismisses the action;
2. Orders Visi/one GmbH and the European Intellectual Property Office (EUIPO) to bear their own costs.
Delivered in open court in Luxembourg on 13 June 2019.
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