Judgment — ECLI:EU:T:2026:302
Date: 2026-04-29
Language of the case: English

JUDGMENT OF THE GENERAL COURT (Ninth Chamber) 29 April 2026 (*) ( EU design – Invalidity proceedings – Registered EU design representing doors – Disclosure of the earlier design – Proof of the disclosure – Article 7(1) of Regulation (EC) No 6/2002 ) In Case T‑580/25, Doors Bulgaria EOOD, established in Sofia (Bulgaria), represented by M. Todorov, lawyer, applicant, v European Union Intellectual Property Office (EUIPO), represented by E. Lobotková and J. Ivanauskas, acting as Agents, defendant, the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being Top Ten EOOD, established in Plovdiv (Bulgaria), represented by S. Sirakov, lawyer, THE GENERAL COURT (Ninth Chamber), composed of S. Kingston, President, P. Zilgalvis (Rapporteur) and J. Hettne, Judges, Registrar: V. Di Bucci, having regard to the written part of the procedure, having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court, gives the following Judgment 1 By its action under Article 263 TFEU, the applicant, Doors Bulgaria EOOD, seeks the annulment and alteration of the decision of the Third Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 23 June 2025 (Case R 1158/2024‑3) (‘the contested decision’). Background to the dispute 2 On 23 June 2023, the intervener, Top Ten EOOD, lodged with EUIPO an application for a declaration of invalidity of the EU design registered following an application filed on 16 December 2013 under No 2370700‑0073 which is represented in the following view: 3 The goods to which the contested design is intended to be applied are in Class 25.02 of the Locarno Agreement of 8 October 1968 Establishing an International Classification for Industrial Designs, as amended, and correspond to the following indication: ‘doors’. 4 The grounds relied on in support of the application for a declaration of invalidity were those set out in Article 25(1)(b) of Council Regulation (EC) No 6/2002 of 12 December 2001 on European Union designs (OJ 2002 L 3, p. 1), in the version prior to the entry into force of Regulation (EU) 2024/2822 of the European Parliament and of the Council of 23 October 2024 (OJ L, 2024/2822), read in conjunction with Article 4(1), Article 5(1)(b) and Article 6(1)(b) of that regulation. 5 The application for a declaration of invalidity was based, inter alia, on the representation of a door, reproduced below, appearing on the screenshot of the website ‘http://sdelalremont.ru/kak-vybrat-mezhkomnatnuyu-dver-pravilno.html’ as archived on 23 August 2013 using the archiving service of the Wayback Machine websites at the address ‘www.web.archive.com’. The intervener also produced a printout from that website: 6 On 23 April 2024, the Invalidity Division declared the contested design invalid on account of its lack of individual character. 7 On 6 June 2024, the applicant filed a notice of appeal with EUIPO against the Invalidity Division’s decision. 8 By the contested decision, the Board of Appeal dismissed the appeal. As regards disclosure of the earlier design, it considered that the screenshot of the website ‘sdelalremont.ru’ as archived on 23 August 2013 and obtained through the Wayback Machine and the complete printout of that website (see paragraph 5 above) were sufficient evidence to consider that that design was made available to the public before the relevant date within the meaning of Article 7(1) of Regulation No 6/2002. For the sake of completeness, the Board of Appeal confirmed the analysis and findings of the Invalidity Division that the designs at issue produced the same overall impression for the informed user, with the result that the contested design lacked individual character within the meaning of Article 6 of Regulation No 6/2002. Forms of order sought 9 The applicant claims, in essence, that the Court should: – annul the contested decision; – reject the application for a declaration of invalidity of the contested design. 10 EUIPO contends that the Court should: – dismiss the action; – order the applicant to pay the costs in the event that a hearing is convened. 11 The intervener contends, in essence, that the Court should: – dismiss the action; – order the applicant to pay the costs. Law 12 In support of its action, the applicant relies, in essence, on a single plea in law, alleging infringement of Article 7(1) of Regulation No 6/2002. 13 The applicant submits that the screenshot from the Wayback Machine is incapable of certifying conclusively and indisputably the disclosure of the earlier design as at the date indicated on the screenshot. In its view, creating such a screenshot would be no problem for a person with minimum technical knowledge. Similarly, the applicant criticises EUIPO for not having verified the actual existence of such an archive stored by the Wayback Machine. It states that that screenshot is not notarised and consequently, there is no certification by any national administrative authority that the content visually displayed was in fact such at the time the screenshot of the Wayback Machine was made. Furthermore, the absence of additional evidence of the claim that the information contained in the screenshot was actually available on the internet should be accepted as a sufficient reason to consider that the intervener failed to discharge its burden of proof. 14 Additionally, the applicant submits that the contested decision lends credence to evidence of earlier disclosure of the contested design that originates from a non-governmental organisation based in the United States, which in turn expressly declares that it in no way guarantees that the data stored by it are accurate, complete or reliable. In that regard, it refers to the conditions of use of the site, its confidentiality policy and its copyright policy. In the applicant’s view, any person using that website is denied the possibility of seeking compensation for any harm caused as a result of the use of the archive by or against that person. The possibility of establishing the falsity or inaccuracy of the collections of internet pages stored by the Wayback Machine is precluded since, first, no procedure to that effect is provided for and, second, the owner of that platform has expressly stated that it is not liable where that data is used, but proves to be non-authentic. The applicant infers from this that the screenshot submitted by the intervener should not be regarded as admissible evidence of disclosure. 15 Lastly, the applicant draws the Court’s attention to the fact that no other direct or circumstantial evidence of the content of the website in question at a date prior to the application for registration of the contested design was gathered in the present case. 16 EUIPO and the intervener dispute the applicant’s claims. 17 Under Article 25(1)(b) of Regulation No 6/2002, in the prior version, an EU design may be declared invalid if it does not fulfil the requirements of Articles 4 to 9 of that regulation, in the prior version, particularly those relating to novelty and individual character. 18 When an applicant for a declaration of invalidity refers to the ground for invalidity set out in Article 25(1)(b) of Regulation No 6/2002, in the prior version, it is for it to provide evidence to demonstrate that the contested design does not fulfil the requirements of Articles 4 to 9 of that regulation, in the prior version (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 60). 19 Article 7(1) of Regulation No 6/2002 provides that a design is to be deemed to have been made available to the public if it has been published following registration or otherwise, or exhibited, used in trade or otherwise disclosed, before the date of filing of the application for registration or, if priority is claimed, before the date of priority, except where those events could not reasonably have become known in the normal course of business to the circles specialised in the sector concerned, operating within the European Union. The design is not, however, to be deemed to have been made available to the public for the sole reason that it has been disclosed to a third person under explicit or implicit conditions of confidentiality. 20 A design is deemed to have been disclosed once the party asserting it has proved the events constituting the disclosure. 21 Thus, in order to establish that an earlier design has been disclosed, it is necessary to carry out an analysis in two stages, consisting in examining, in the first place, whether the evidence submitted in the application for a declaration of invalidity shows, on the one hand, facts constituting disclosure of a design and, on the other hand, that that disclosure occurred earlier than the date of filing or priority of the design at issue and, in the second place, where the holder of the design at issue has claimed the contrary, whether those facts could reasonably become known in the normal course of business to the circles specialised in the sector operating within the European Union, failing which a disclosure will be considered to have no effects and will not be taken into account (judgment of 13 June 2019, Visi/one v EUIPO – EasyFix (Display holder for vehicles), T‑74/18, EU:T:2019:417, paragraph 24). In that regard, 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 operating within the European Union (see, to that effect, judgments of 21 May 2015, Senz Technologies v OHIM – Impliva (Umbrellas), T‑22/13 and T‑23/13, EU:T:2015:310, paragraph 26; of 15 October 2015, Promarc Technics v OHIM – PIS (Part of door), T‑251/14, not published, EU:T:2015:780, paragraph 26; and of 27 February 2018, Gramberg v EUIPO – Mahdavi Sabet (Case for a mobile telephone), T‑166/15, EU:T:2018:100, paragraph 22). 22 The evidence relied on must be capable of establishing to the requisite legal standard that the earlier design was actually made available to the public before the date of filing of the application for registration of the contested design (judgment of 21 June 2018, Haverkamp IP v EUIPO – Sissel (Pebble beach surface pattern), T‑228/16, not published, EU:T:2018:369, paragraph 27). 23 Additionally, it must be recalled that neither Regulation No 6/2002 nor Commission Regulation (EC) No 2245/2002 of 21 October 2002 implementing Regulation No 6/2002 (OJ 2002 L 341, p. 28) specifies the mandatory form of the evidence that must be adduced by the invalidity applicant to show that the earlier design was disclosed before the date of filing of the application for registration of the design for which protection is claimed (judgment of 9 March 2012, Coverpla v OHIM – Heinz-Glas (Phial), T‑450/08, not published, EU:T:2012:117, paragraph 22). 24 It follows, first, that the applicant for a declaration of invalidity is free to choose the evidence which it considers useful to submit to EUIPO in support of its application for a declaration of invalidity and, second, that EUIPO is required to examine all evidence submitted in order to establish whether it actually proves disclosure of the earlier design (see judgment of 27 February 2018, Case for a mobile telephone, T‑166/15, EU:T:2018:100, paragraph 26 and the case-law cited). 25 However, the disclosure of an earlier design cannot be proved by means of probabilities or suppositions, but must be demonstrated by solid and objective evidence of effective disclosure of the earlier design on the market (see judgment of 27 February 2018, Case for a mobile telephone, T‑166/15, EU:T:2018:100, paragraph 23 and the case-law cited). 26 In that regard, it should be borne in mind that the prevailing principle of EU law is that the evaluation of evidence should be unfettered, with the result that any party may, in principle, rely on evidence of any kind, which does not negate the requirement emanating from the case-law that the evidence must be sufficiently cogent, consistent, reliable and factually accurate (see judgment of 4 October 2024, thyssenkrupp v Commission, C‑581/22 P, EU:C:2024:821, paragraph 99 and the case-law cited). 27 A design is made available to the public where the evidence adduced shows that that design has been published. Article 7(1) of Regulation No 6/2002 expressly mentions publication as one of the methods of making a design available to the public, with the result that that publication may constitute evidence of the existence and earlier disclosure of the contested design to the public (see, to that effect, judgment of 15 October 2015, Part of door, T‑251/14, not published, EU:T:2015:780, paragraph 22). 28 It is in the light of those principles that the present action must be examined. 29 In the present case, the Board of Appeal, like the Invalidity Division, found in paragraph 41 of the contested decision that the complete printout of the website ‘sdelalremont.ru’ containing the image of the earlier design and the screenshot from the Wayback Machine from that site, as archived on 23 August 2013, constituted sufficient evidence of disclosure of that design. It stated, inter alia, that, in so far as the information published online is deemed to be accessible to the public from the date of archiving, that date is considered to be the relevant date of disclosure for the purposes of Article 7(1) of Regulation No 6/2002. 30 In the first place, it should be noted that the two items of evidence, examined both by the Invalidity Division and by the Board of Appeal, are a complete printout of the website ‘sdelalremont.ru’ containing the image of the earlier design and a screenshot from the Wayback Machine which archived that site on 23 August 2013. It must be stated that those items of evidence contain the representation of the earlier design, the full URL address and the date of archiving of the website, namely 23 August 2013. 31 It is apparent from the case-law, first, that the appearance of the image of a design on the internet constitutes an event which may be classified as a ‘publication’ and which is therefore tantamount to ‘[disclosure] to the public’ within the meaning of Article 7(1) of Regulation No 6/2002 (see, to that effect, judgment of 21 June 2023, Rauch Furnace Technology v EUIPO – Musto and Bureau (Creuset), T‑347/22, not published, EU:T:2023:344, paragraph 62 and the case-law cited) and, second, that the screenshot taken from the Wayback Machine may constitute a source of relevant information corroborating the reliability of the screenshot of a website (see, to that effect, judgment of 20 October 2021, JMS Sports v EUIPO – Inter-Vion (Spiral hair elastic), T‑823/19, EU:T:2021:718, paragraph 58). 32 In that regard, as is apparent from the case-law cited in paragraph 25 above, the prevailing principle in EU law is the principle of the unfettered evaluation of evidence, from which it follows, in particular, that the only relevant criterion for the purpose of assessing the probative value of evidence lawfully adduced relates to its credibility. Thus, in order to assess the probative value of a document, it is necessary to take account, in particular, of the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed and whether, on the face of it, the document appears sound and reliable (see judgment of 18 May 2022, Domator24.com Paweł Nowak v EUIPO – Siwek and Didyk (Armchair), T‑256/21, not published, EU:T:2022:297, paragraph 30 and the case-law cited). 33 As regards, in the second place, the allegations of manipulation of evidence, it must be noted that the Court has already held that the mere abstract possibility that the content or date of a website may be manipulated is not a sufficient ground to undermine the credibility of the evidence consisting of the screenshot of that website. That credibility can be undermined only by invoking facts that concretely suggest a manipulation. Such facts may include clear signs of falsification, manifest contradictions in the information shown or obvious inconsistencies that may reasonably justify doubts as to the genuineness of the screenshots of the websites at issue in question (see, to that effect, judgment of 20 October 2021, Spiral hair elastic, T‑823/19, EU:T:2021:718, paragraph 49 and the case-law cited). It must be stated that the applicant’s claims are abstract and, as the Board of Appeal pointed out in paragraph 43 of the contested decision, the applicant has not adduced specific evidence to show that the intervener fabricated or modified such a webpage, or even how it would have been technically or practically possible for it to make such fabrication or modification. 34 In the third place, as regards the applicant’s argument based on the conditions of use of the Wayback Machine to call into question the credibility of the disclosure of the earlier design, it should be noted, as observed by EUIPO, that the applicant has not identified any specific term or explained how those terms would undermine the authenticity of the archived screenshot in question. Similarly, it must be recalled that, in accordance with the case-law cited in paragraph 31 above, the Wayback Machine is a source of relevant information that may corroborate the reliability of the screenshot of a website. 35 As regards, in the fourth place, the claim that the evidence adduced by the intervener is not certified, it should be recalled, as is apparent from the case-law cited in paragraph 23 above, that neither Regulation No 6/2002 nor Regulation No 2245/2002 specifies the mandatory form of the evidence that must be adduced by the invalidity applicant to show that the earlier design was disclosed before the date of filing of the application for registration of the design for which protection is claimed (judgment of 9 March 2012, Phial, T‑450/08, not published, EU:T:2012:117, paragraph 22). A fortiori, those regulations do not impose a requirement to authenticate evidence of disclosure of an earlier design, as the Board of Appeal correctly found in paragraph 43 of the contested decision. Accordingly, the failure to certify the authenticity of the evidence adduced cannot result in the Court’s obligation to reject it (see, to that effect, judgment of 25 April 2018, Euro Castor Green v EUIPO – Netlon France (Concealed trellis), T‑756/16, not published, EU:T:2018:224, paragraph 48). 36 In the fifth place, the applicant’s claims that, first, EUIPO should have verified the existence of the archived web page and, second, that it should have gathered additional evidence to confirm the content of that web page, must be rejected as unfounded. As is apparent from paragraph 30 above, the screenshot produced by the intervener contains all the information necessary to conclude that the earlier design was indeed disclosed before the application for the contested design was filed and the applicant has not established that that evidence was unreliable or factually inaccurate. 37 Lastly, in accordance with the case-law referred to in paragraph 21 above, once disclosure has been demonstrated, it is presumed to exist. It is therefore for the party challenging it to prove that the circumstances of the case could reasonably prevent the events constituting the disclosure in question from becoming known in the normal course of business to the circles specialised in the sector concerned (see judgment of 10 November 2021, Sanford v EUIPO – Avery Zweckform (Labels), T‑443/20, EU:T:2021:767, paragraph 48 and the case-law cited). In the present case, the applicant has not adduced any evidence to that effect, as the Board of Appeal found, in essence, in paragraph 44 of the contested decision. During the administrative procedure, the applicant merely claimed that screenshot from the Wayback Machine was not capable of demonstrating disclosure of the earlier design by putting forward, in essence, the same arguments as before the Court. 38 In the light of all the foregoing, it follows that the arguments put forward by the applicant are not such as to call into question the Board of Appeal’s assessments, with the result that the single plea in law must be rejected and the action dismissed in its entirety. Costs 39 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. 40 Since the applicant has been unsuccessful, it must be ordered to pay the costs incurred by the intervener, in accordance with the form of order sought by the intervener. 41 By contrast, since EUIPO has applied for the applicant to be ordered to pay the costs only in the event that a hearing is held, EUIPO must, in the absence of a hearing, be ordered to bear its own costs. On those grounds, THE GENERAL COURT (Ninth Chamber) hereby: 1. Dismisses the action; 2. Orders Doors Bulgaria EOOD to bear its own costs and to pay those incurred by Top Ten EOOD; 3. Orders the European Union Intellectual Property Office (EUIPO) to bear its own costs. Kingston Zilgalvis Hettne Delivered in open court in Luxembourg on 29 April 2026. V. Di Bucci S. Papasavvas Registrar President * Language of the case: English.