Opinion of the Advocate General — ECLI:EU:C:2014:206
Date: 2014-04-02
Language of the case: English
Subject matter: General provisions;Intellectual, industrial and commercial property;Designs
Procedure: Reference for a preliminary ruling
Origin: Ireland

Summary — Judgment of the Court (Second Chamber), 19 June 2014 1. Community designs — Conditions of protection — Individual character — Overall impression produced on the informed user different from the overall impression produced on such a user by an earlier design — Determination of the overall impression in relation to one or more earlier designs, taken individually (Council Regulation No 6/2002, Art. 6) 2. Community designs — Unregistered Community designs — Jurisdiction and procedure for legal proceedings — Proceedings in respect of an infringement action or an action for threatened infringement — Presumption of validity (Council Regulation No 6/2002, Art. 85(2)) 1. Article 6 of Regulation No 6/2002 on Community designs is to be interpreted as meaning that, in order for a design to be considered to have individual character, the overall impression which that design produces on the informed user must be different from that produced on such a user not by a combination of features taken in isolation and drawn from a number of earlier designs, but by one or more earlier designs, taken individually. The reference to the overall impression produced on the informed user by ‘any design’ which has been made available to the public indicates that Article 6 must be interpreted as meaning that the assessment as to whether a design has individual character must be conducted in relation to one or more specific, individualised, defined and identified designs from among all the designs which have been made available to the public previously. (see paras 25, 35, operative part 1) 2. Article 85(2) of Regulation No 6/2002 on Community designs must be interpreted as meaning that, in order for a Community design court to treat an unregistered Community design as valid, the right holder of that design is not required to prove that it has individual character within the meaning of Article 6 of that regulation, but need only indicate what constitutes the individual character of that design, that is to say, indicates what, in his view, are the element or elements of the design concerned which give it its individual character. As indicated by the very heading of Article 85 of Regulation No 6/2002, paragraph 1 thereof establishes a presumption of validity of registered Community designs and, in paragraph 2, a presumption of validity of unregistered Community designs. The implementation of that presumption of validity is, by its very nature, incompatible with the interpretation of Article 85(2) of Regulation No 6/2002, to the effect that the proof which the holder of a design must make out under that provision, namely that the conditions laid down in Article 11 of that regulation have been met, includes the proof that the design concerned also satisfies all of the conditions laid down in Section 1 of Title II of that regulation, that is to say, Articles 3 to 9 thereof. (see paras 39, 40, 47, operative part 2)