Case T‑166/15

Claus Gramberg

v

European Union Intellectual Property Office

(Community design — Invalidity proceedings — Registered Community design representing a case for a mobile telephone — Disclosure of the design — Article 7(1) of Regulation (EC) No 6/2002 — Evidence submitted for the first time before the General Court)

Summary — Judgment of the General Court (Fourth Chamber), 27 February 2018

1.      Community designs — Appeals procedure — Action before the EU judicature — Jurisdiction of the General Court — Re-evaluation of the facts in the light of evidence produced for the first time before it — Precluded

(Council Regulation No 6/2002, Art. 61)

2.      Community designs — Grounds for invalidity — Lack of novelty — Previous disclosure of identical design — Proof of the disclosure

(Council Regulation No 6/2002, Arts 5(1)(b) and 7(1))

3.      Community designs — Grounds for invalidity — Lack of novelty — Previous disclosure of identical design — Proof of the disclosure –Content of a website — Amazon

(Council Regulation No 6/2002, Arts 5(1)(b) and 7(1))

4.      Community designs — Grounds for invalidity — Lack of novelty — Previous disclosure of identical design — Proof of the disclosure — Content of a website or any other electronic document

(Council Regulation No 6/2002, Arts 5(1)(b) and 7(1))

5.      Community designs — Appeals procedure — Action before the EU judicature — Power of the General Court to alter the contested decision — Limits

(Council Regulation No 6/2002, Art. 61)

1.      See the text of the decision.

(see para. 17)

2.      A design is deemed to have been made available once the party relying thereon has proven the events constituting disclosure. In order to rebut that presumption, the party disputing disclosure must establish to the requisite legal standard that, in the circumstances of the case, it cannot reasonably be assumed that those events have become known in the normal course of business to the specialist circles in the sector concerned.

The disclosure of an earlier design cannot be proven by means of probabilities or suppositions, but has to be demonstrated by solid and objective evidence of actual disclosure of the earlier design on the market.

The evidence provided by the applicant for a declaration of invalidity must be considered in its entirety. Although some of that evidence may be insufficient in itself to prove disclosure of an earlier design, when combined or read in conjunction with other documents or information, it may nevertheless contribute to establishing disclosure.

In addition, in order to assess the evidential value of a document, it is necessary to verify the plausibility and the accuracy of the information which that document contains. It is necessary to take account of, inter alia, the origin of the document, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, the document appears to be sound and reliable.

It follows from the EU legislation in force which is applicable to Community designs that, first, the applicant for a declaration of invalidity is free to choose the evidence which it considers useful to submit to the European Union Intellectual Property Office (EUIPO) in support of its application for a declaration of invalidity and, second, EUIPO is required to examine all evidence submitted in order to establish whether it actually proves disclosure of the earlier design.

(see paras 22-26)

3.      Even though it might seem reasonable to consider that the content of a website can be altered at any time and that that content can be difficult to verify a posteriori, such considerations cannot be applied to screenshots taken from the ‘amazon.de’ online sales website containing, immediately before the reference to the availability date of the offer on that website, the ASIN (Amazon Standard Identification Number), which is a unique reference number assigned to each item in the catalogue which enables the item on the Amazon online sales platform to be identified.

(see paras 43-45)

4.      To apply the presumption automatically that the content of a website or of any other electronic document can be altered at any time, in the absence of serious and substantiated doubts that the evidence was altered in a specific case, would deprive of all effect the principle established in EU case-law that the evidence provided by the applicant for a declaration of invalidity must be considered in its entirety.

(see para. 90)

5.      See the text of the decision.

(see para. 98)