Judgment;Abstract — ECLI:EU:T:2019:379
Date: 2019-06-06
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Intellectual, industrial and commercial property;Designs
Procedure: Action for annulment - unfounded;Action for annulment - inadmissible
Origin: Germany

summary of the pleas in law on which the application is based. The information given must be sufficiently clear and precise to enable the defendant to prepare his defence and the General Court to decide the case. The same considerations also apply to all claims, which must be accompanied by pleas and arguments enabling both the defendant and the Court to assess their validity. It is therefore necessary for the matters of fact and of law on which a case is based to be indicated coherently and intelligibly in the application itself. Similar requirements apply where a claim or an argument is relied on in support of a plea in law (see judgment of 13 March 2013, Biodes v OHIM – Manasul Internacional (FARMASUL), T‑553/10, not published, EU:T:2013:126, paragraph 22 and the case-law cited). 54 It should be noted that the applicant does not dispute the Board of Appeal’s findings that the freedom of the designer is subject to the constraints imposed by, first, the technical function of a motor vehicle, which serves the purpose of carrying people and loads, and, secondly, statutory requirements, in particular in the area of road safety. Moreover, EUIPO and the applicant both admit that potential market expectations or certain trends in design are not factors that restrict the freedom of the designer (see, to that effect, judgment of 4 February 2014, Sachi Premium-Outdoor Furniture v OHIM – Gandia Blasco (Armchair), T‑357/12, not published, EU:T:2014:55, paragraphs 23 and 24 and the case-law cited). 55 Furthermore, it should be noted that the applicant has not put forward any matters of fact or law in support of that part of the single plea. It does not explain how the Board of Appeal erred in assessing the degree of freedom of the designer. 56 It follows that the third part of the single plea in law must be rejected as inadmissible. The fourth part of the single plea, alleging that the Board of Appeal should have taken certain evidence into consideration 57 The applicant submits that the Board of Appeal should have taken into account, first, an illustration entitled ‘VW Caddy Life (2004-2010)’ which appeared in an article from the online encyclopaedia Wikipedia, and secondly, an illustration from a used car offer, both of which were annexed to its application for a declaration of invalidity. It is important to take those illustrations into account because the vehicle which appears therein has a bumper which is of the same colour as the rest of the vehicle. The difference in the colour of the bumper, highlighted several times in the contested decision, is therefore irrelevant. 58 The applicant also criticises the Board of Appeal for having failed to take into account an online article because it was not attached in annex. According to the applicant, that article was annexed to the statement of 13 January 2017 addressed to the Board of Appeal. 59 It must be held that the Board of Appeal was right to exclude from its analysis the illustration which appeared in an article from the online encyclopaedia Wikipedia. It should be recalled that, in order to assess the probative value of a document, it is necessary to check the plausibility and accuracy of the information it contains. Account must be taken, inter alia, of the origin of the document, the circumstances of its preparation and the person to whom it is addressed, and of whether it seems from the content to be sensible and reliable (see judgment of 9 March 2012, Coverpla v OHIM – Heinz-Glas (Phial), T‑450/08, not published, EU:T:2012:117, paragraph 26 and the case-law cited). In the present case, given that Wikipedia is an online encyclopaedia whose content may be amended at any time and by any visitor, that illustration must be considered to have extremely limited probative value (see, to that effect, judgment of 10 February 2010, O2 (Germany) v OHIM (Homezone), T‑344/07, EU:T:2010:35, paragraph 46). 60 As regards the complaint that the Board of Appeal failed to take into consideration the illustration in the used car offer, it should be noted that it is essential that the departments of EUIPO have an image of the earlier design that makes it possible to see the appearance of the product in which the design is incorporated and to identify the earlier design precisely and with certainty, so that they may, in accordance with Articles 5 to 7 of Regulation No 6/2002, assess the novelty and individual character of the contested design and carry out a comparison of the designs at issue as part of that assessment. It is a prerequisite of an examination whether the contested design does in fact lack novelty or individual character that a specific and defined earlier design is available (judgment 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 64). 61 It is for the party which lodged the application for a declaration of invalidity to provide EUIPO with the necessary information and, in particular, to identify and reproduce precisely and entirely the design that is claimed to be earlier in order to demonstrate that the contested design cannot be validly registered (judgment 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 65). 62 EUIPO cannot be required, in particular in the context of assessing the novelty of a contested design, to combine various elements of an earlier design, since it is for the applicant for a declaration of invalidity to produce a complete representation of that earlier design. Moreover, any potential combination would be flawed, since it would necessarily entail approximations (judgment 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 69). The same applies as regards the assessment of the individual character of the contested design. Indeed, 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 (judgment of 19 June 2014, Karen Millen Fashions, C‑345/13, EU:C:2014:2013, paragraph 35). 63 In the present case, the applicant expects EUIPO not only to combine various representations of the product in which the earlier design is incorporated, but also to replace an element which appears in most of the representations, namely a bumper of a different colour from the vehicle, with an element which does not appear in any of them, namely a bumper of the same colour as the vehicle. Therefore, the applicant did not provide EUIPO with the information to identify and reproduce precisely and entirely the design that is claimed to be earlier in the context of the present plea. It follows that the Board of Appeal did not err in not taking into account the fact that the product in which the earlier design is incorporated, which appears in the used car offer, has a bumper of the same colour as the vehicle. 64 As regards the online article which the Board of Appeal disregarded, it must be held that the Board was not obliged to take it into account, since it was irrelevant because, as noted in paragraph 34 of the contested decision, it did not provide any information on the overall impression produced on the informed user. Moreover, the observation, also made in paragraph 34 of the contested decision, that the article in question was in actual fact not annexed to the applicant’s observations was made for the sake of completeness, so the applicant’s complaint that the Board of Appeal should have taken it into account simply because it was annexed to the observations is invalid. 65 It follows from all the foregoing that the fourth part of the single plea, and therefore the action in its entirety, should be dismissed, without it being necessary to rule on the admissibility of the second head of claim requesting that the General Court declare the contested design invalid. Costs 66 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO and the intervener. On those grounds, THE GENERAL COURT (Eighth Chamber), hereby: 1. Dismisses the action; 2. Orders Rietze GmbH & Co. KG to pay the costs. Collins Kancheva De Baere Delivered in open court in Luxembourg on 6 June 2019. [Signatures] * Language of the case: German.