Case T‑525/13

H&M Hennes & Mauritz BV & Co. KG

v

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

(Community design — Invalidity proceedings — Registered Community design representing handbags — Earlier design — Ground for invalidity — Individual character — Article 6 of Regulation (EC) No 6/2002 — Obligation to state reasons)

Summary — Judgment of the General Court (Sixth Chamber), 10 September 2015

1.      Community designs — Procedural provisions — Statement of reasons for decisions — Article 62, first sentence, of Regulation No 6/2002 — Scope identical to that of Article 296 TFEU — Recourse by the Board of Appeal to implicit reasoning — Lawfulness — Conditions

(Art. 296 TFEU; Council Regulation No 6/2002, Art. 62)

2.      Community designs — 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))

3.      Community designs — 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 — Representation of handbags

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

4.      Community designs — 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))

5.      Community designs — 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))

1.      See the text of the decision.

(see paras 15, 16)

2.      See the text of the decision.

(see paras 22, 24, 25)

3.      See the text of the decision.

(see paras 23, 26, 27, 30, 40)

4.      The text of Article 6 of Regulation No 6/2002 on Community designs, concerning the assessment of individual character, lays down, in paragraph 1 thereof, the criterion of the overall impression produced by the designs at issue and states, in paragraph 2, that the degree of freedom of the designer must be taken into consideration for those purposes. It is apparent from those provisions, and in particular from Article 6(1)(b) of Regulation No 6/2002, that the assessment of the individual character of a Community design is the result, in essence, of a four-stage examination. 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 in the comparison, direct if possible, of the designs; third, the designer’s degree of freedom in developing his design; and, fourth, the outcome of the comparison of the designs at issue, taking into account the sector in question, the designer’s degree of freedom and 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.

Thus, the factor relating to the designer’s degree of freedom may ‘reinforce’ (or, a contrario, moderate) the conclusion as regards the overall impression produced by each design at issue. The assessment of the designer’s degree of freedom does not constitute a preliminary and abstract step in the comparison of the overall impression produced by each design at issue.

As regards the degree of freedom of the designer of a design, it is apparent from the case-law that that is determined, inter alia, 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 the designs applied to the product concerned.

Therefore, the greater the designer’s freedom in developing a design, the less likely it is that minor differences between the designs at issue will be sufficient to produce different overall impressions on an informed user. Conversely, the more the designer’s freedom in developing a design is restricted, the more likely it is that minor differences between the designs at issue will be sufficient to produce different overall impressions on an informed user. Consequently, if the designer enjoys a high degree of freedom in developing a design, that reinforces the conclusion that designs that do not have significant differences produce the same overall impression on an informed user.

(see paras 28, 29, 32, 33)

5.      See the text of the decision.

(see para. 39)