Action brought on 7 January 2008 - Kwang Yang Motor v OHIM - Honda Giken Kogyo (Representation of an internal-combustion engine)

(Case T-11/08)

Language in which the application was lodged: English

Parties

Applicant: Kwang Yang Motor Co. Ltd (Kaohsiung City, Taiwan) (represented by: P. Rath and W. Festl-Wietek, lawyers)

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

Other party to the proceedings before the Board of Appeal: Honda Giken Kogyo Kabushiki Kaisha Co. Ltd (Tokyo, Japan)

Form of order sought

Annulment of the decision of the Third Board of Appeal of the OHIM of 8 October 2007 served to the representatives of the applicant on 30 October 2007, in Case R 1380/2006-3;

order the OHIM to pay the costs of the proceedings before the Court and Board of Appeal.

Pleas in law and main arguments

Registered Community design subject of the application for a declaration of invalidity: Registered Community design for an "internal-combustion engine" - Community Design No 000 163 290 - 0002

Proprietor of the Community design: The applicant

Party requesting the declaration of invalidity of the Community design: Honda Giken Kogyo Kabushiki Kaisha Co. Ltd

Design of the party requesting the declaration of invalidity: Registered US design in respect for an "internal-combustion engine"- Patent No D 282 071

Decision of the Invalidity Division: Rejected the application for invalidity in its entirety

Decision of the Board of Appeal: Annulled the decision of the Invalidity Division and declared the design invalid

Pleas in law: Infringement of Articles 4 and 6 of Council Regulation (EC) No 6/2002 on Community Designs

The applicant claims that the freedom of designers of combustion engines is narrowed to designs which fulfil the requirement of functionality. In addition, the industry's state of art being nearly exhausted, it is even more difficult for designers in this field to provide an alternative offering a totally different overall impression without reducing the design's functionality. Hence, according to the applicant, even the slightest details have to be taken into consideration when assessing the individual character of the design.

The applicant further submits that it nevertheless succeeded to maintain functionality as well as technical features of the challenged design, while giving its essential components an individual character.

____________