Judgment;Abstract — ECLI:EU:T:2022:263
Date: 2022-04-27
Language of the case: Dutch
Subject matter: Intellectual, industrial and commercial property;Designs
Procedure: Action for annulment - unfounded
Origin: Belgium

summary of facts’ (paragraphs 1 to 26), since it contains a summary of the applicant’s arguments, and not an assessment by the Board of Appeal. 101 According to the case-law, pleas which do not seek to challenge the grounds on which the Board of Appeal dismissed the appeal brought before it must be regarded as ineffective (see order of 16 October 2020, L. Oliva Torras v EUIPO – Mecánica del Frío (Vehicle couplings), T‑629/19, not published, EU:T:2020:506, paragraph 26 and the case-law cited). That is the case here. 102 Furthermore, it should be noted, as EUIPO did, that the subject matter of a contested design and its features must be determined exclusively by reference to the representations produced in support of the application for registration. 103 When assessing the novelty or individual character of the contested design, it must be compared with earlier designs in the form in which it was registered (see, to that effect and by analogy, judgments of 8 December 2005, Castellblanch v OHIM – Champagne Roederer (CRISTAL CASTELLBLANCH), T‑29/04, EU:T:2005:438, paragraph 57, and of 21 April 2021, Chanel v EUIPO – Huawei Technologies (Representation of a circle containing two interlaced curves), T‑44/20, not published, EU:T:2021:207, paragraph 25). 104 Furthermore, the findings as to the subject matter and features of a contested design cannot be left to the parties to assess and, ultimately, be at the parties’ discretion (see, to that effect, regarding the legal characterisation of the act of disclosure, judgment of 23 October 2018, Mamas and Papas v EUIPO – Wall-Budden (Cot bumpers), T‑672/17, not published, EU:T:2018:707, paragraph 60). 105 The second plea must therefore be rejected as ineffective and unfounded. The fourth, fifth and sixth pleas, concerning the comparison of the designs at issue and the assessment of the individual character of the contested design Legislation and case-law 106 Under Article 25(1)(b) of Regulation No 6/2002, a Community design may be declared invalid if it does not fulfil the requirements of Articles 4 to 9 of that regulation, which include, in particular, novelty and individual character. 107 According to Article 6(1)(b) of Regulation No 6/2002, a Community design is to be considered to have individual character if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design made available to the public before the date of filing of the application for registration or, if a priority is claimed, the date of priority. Article 6(2) of that regulation further provides that, in assessing individual character, the degree of freedom of the designer in developing the design is to be taken into consideration. 108 The assessment as to whether a Community design has individual character involves an examination carried out, in essence, in four stages. That examination consists of 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; secondly, 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 to the similarities and the differences in the comparison of the designs; thirdly, the designer’s degree of freedom in developing the design, the influence of which on individual character is in inverse proportion; and, fourthly, taking that degree of freedom into account, the outcome of the comparison, direct if possible, of 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, taken individually (see judgment of 13 June 2019, Display holder for vehicles, T‑74/18, EU:T:2019:417, paragraph 66 and the case-law cited). 109 As regards the earlier design or designs, the assessment of the individual character of a design must be carried out in relation to one or more earlier designs, taken individually from among all the designs which have been made available to the public previously, and not in relation to a combination of isolated elements taken from a number of earlier designs (judgments of 19 June 2014, Karen Millen Fashions, C‑345/13, EU:C:2014:2013, paragraphs 25 and 35, and of 13 June 2019, Display holder for vehicles, T‑74/18, EU:T:2019:417, paragraph 84; see also, to that effect, the judgment on appeal, paragraph 61). Thus, an earlier design must be an earlier design which is ‘whole’ or comprises ‘all the component parts’, and cannot be the result of a combination of elements. 110 It is essential that the adjudicating bodies 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. Furthermore, it is for the party which filed 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 allegedly earlier in order to demonstrate that the contested design cannot be validly registered. By contrast, 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 (see, to that effect, the judgment on appeal, paragraphs 64, 65 and 69). 111 Furthermore, it should be noted that knowing the sector of the goods covered by the application for registration is not relevant for the purpose of relying on the earlier design in invalidity proceedings, or, moreover, as regards the scope of protection of the design in infringement proceedings, having regard to Article 36(6) of Regulation No 6/2002. Thus, according to the case-law of the Court, it is not necessary for the informed user of the contested design to know the product in which the earlier design is incorporated or to which it is applied (see, to that effect, the judgment on appeal, paragraph 134). In other words, an earlier design incorporated in a product other than that concerned by the contested design constitutes, in principle, an earlier design which is relevant for the purpose of assessing the individual character within the meaning of Article 6 of Regulation No 6/2002, of the contested design. 112 As regards the contested design, the non-visible features of the product, which do not relate to its appearance, cannot be taken into account in the determination of whether the contested design could be protected (see, to that effect, judgment of 9 September 2014, Biscuits Poult v OHIM – Banketbakkerij Merba (Biscuit), T‑494/12, EU:T:2014:757, paragraph 29). 113 As regards the comparison of the designs at issue, according to settled case-law, the individual character of a design results from an overall impression of difference, or the lack of ‘déjà vu’, from the point of view of an informed user in relation to any previous presence in the design corpus, without taking account of any differences that are insufficiently significant to affect that overall impression, even though they may be more than insignificant details, but taking account of differences that are sufficiently marked so as to produce dissimilar overall impressions (see judgment of 13 June 2019, Display holder for vehicles, T‑74/18, EU:T:2019:417, paragraph 83 and the case-law cited). 114 The comparison of the overall impressions produced by the designs at issue must be synthetic and may not be limited to an analytic comparison of a list of similarities and differences. That comparison must take as a basis the features disclosed in the contested design and must relate solely to the features protected, without taking account of the features excluded from protection. The comparison must relate to the designs, in principle, as registered, and the applicant for a declaration of invalidity cannot be required to produce a graphic representation of the design relied on, comparable to the representation in the application for registration of the contested design (see judgment of 13 June 2019, Display holder for vehicles, T‑74/18, EU:T:2019:417, paragraph 84 and the case-law cited). 115 It is in the light of that case-law that it is necessary to examine the applicant’s fourth, fifth and sixth pleas, after individually reproducing the designs at issue and recalling the assessments made by the Board of Appeal in paragraphs 98 to 112 of the contested decision. The contested decision and individual reproduction of the designs at issue 116 The designs at issue are represented as follows. The six designs covered by registration No DM/059828 must be taken individually, as each one constitutes, subject to the examination of the fourth plea in law (see paragraphs 128 to 147 below), an earlier whole design (see paragraph 109 above): 25.1 25.2 25.3 Contested design Earlier designs 25.1 25.2 25.3 Contested design Earlier designs 25.1 25.2 25.3 Contested design Earlier designs 25.1 25.2 25.3 Contested design Earlier designs 25.1 25.2 25.3 Contested design Earlier designs 25.1 25.2 25.3 Contested design Earlier designs 25.1 25.2 25.3 Contested design Earlier designs 117 In paragraphs 98 and 99 of the contested decision, the Board of Appeal observed that earlier designs 1 and 3 were the only ones showing a non-perforated cover plate, whereas the other earlier designs had slots the numbers and shapes of which were different. Since the presence of slots greatly contributed to creating a clearly different overall impression with respect to the contested design, the Board found it appropriate to proceed with the assessment of individual character by considering with special care earlier designs 1 and 3. Nonetheless, for the sake of completeness, the Board also took into account the other earlier designs, namely earlier designs 2, 4, 5 and 6, since, according to the applicant, some of them had dimensions and proportions which coincided with those of the shower drainage channel represented by the contested design. It added that, in comparing the designs at issue, it would take into account the appearance of only those features which would remain visible once the shower drainage channels are installed. 118 In paragraph 100 of the contested decision, the Board of Appeal noted that, in paragraph 49 of the first judgment of the General Court (see paragraph 14 above), the General Court had considered that the product to which the contested design related was a ‘shower drain’ and that, once built into the floor of the shower, it was not only the top of the plate which was visible, but also the two side slots and the top of the rim of the collector. Therefore, the Board of Appeal was clearly referring to that latter feature when it mentioned the ‘thin outer edges of the shower drain’ in the first decision. Therefore, in paragraph 59 of that judgment, the General Court had taken the same view as the Board of Appeal in its first decision, namely that, once the ‘shower drain’ represented by the contested design is installed, the horizontal surface of the cover plate was not the only element of it that would remain visible. 119 In that regard, it should be explained immediately, for the sake of terminological accuracy and clarity, that the contested design is not a ‘siphon de douche’ [‘shower drain’] (‘douchesifon’ in Dutch) in the strict sense, as stated by the General Court in the French version of its first judgment (see paragraphs 49 and 59 of that judgment), but rather a ‘caniveau d’évacuation de douche’ [‘shower drainage channel’] (‘douchegoot’ or ‘doucheput’ in Dutch), comprising not only a drain, but also and above all a drainage collector and a cover plate. Moreover, the expression ‘caniveau d’évacuation de douche’ is a more precise translation of the English expression ‘shower drain’, which is also used in that judgment and appears in the application for registration (see paragraph 3 above). 120 In paragraph 101 of the contested decision, the Board of Appeal found as follows: – the designs at issue shared an elongated and rectangular shape; – earlier design 5 and the contested design displayed almost identical proportions between the four sides of the plate; – earlier designs 1 and 3 and the contested design had a closed cover plate; – with the exception of earlier design 5, the other earlier designs and the contested design had thin outer edges on the four sides. 121 In paragraph 102 of the contested decision, the Board of Appeal found, however, that the designs at issue differed in the following features: – earlier designs 1, 2, 3 and 5 had a circular water collector in the centre of their surface, which corresponded to the siphon positioned on the underside, whereas that feature was not present in the contested design; – earlier designs 1 and 2 had four attaching extensions on their long sides. Those features were absent in the other designs, including the contested design, but their visibility was at most very limited when the product was installed; – earlier designs 4, 5 and 6 did not have a cover plate, but a perforated plate, whilst the contested design had a closed and decorated cover plate; – only the cover plate in the contested design had elongated slots on the longer sides, whilst the earlier designs had a circular water collector or a grid of slots or perforations; – in the earlier designs, there were no decorative elements on the plate, whereas, in the contested design, the cover plate was decorated with a pattern of dots over its entire surface. 122 In paragraphs 103 and 104 of the contested decision, the Board of Appeal observed that the overall impression that earlier designs 1 and 3 produced on the informed user was determined mainly by the presence of the rectangular and elongated shape of the collector and the circular opening in the centre corresponding to the siphon placed below it. According to the Board of Appeal, those features differed from those that can be found in the sector of liquid drainage devices, which can also have collectors that are square or circular in shape and slots that are, for instance, rectangular in shape. Conversely, according to the Board of Appeal, the thin outer edges on the four sides were less noticeable than the other elements and have a reduced impact in their overall impression. 123 In paragraphs 105 and 106 of the contested decision, the Board of Appeal found that, moreover, the contested design had a rectangular and elongated cover plate of which the thin outer edges on the four sides were visible. According to the Board of Appeal, however, unlike in the earlier designs examined, that cover plate was completely closed because the water was drained by the elongated slots on the long sides of the shower drain in the contested design, and it was also decorated with a pattern of grey dots on its surface. Furthermore, in the present case, the presence of the thin outer edges was not particularly noticeable when using the draining device in question. Indeed, from a vertical view, those features would not produce a particular impression on the informed user, who would focus mainly on the lines and shapes of the cover plate. 124 In paragraph 107 of the contested decision, the Board of Appeal therefore found that, although those designs and the contested design consisted of elongated and rectangular shapes with thin outer edges, with similar proportions to those of the earlier designs identified by the applicant, the contested design included a fully closed and, equally importantly, decorated cover plate with slots on either side. According to the Board of Appeal, those features gave the contested design an impression which was different from that produced by the earlier designs. In the earlier designs, the absence of decoration on a fully closed cover plate and the presence of the immediately noticeable circular shape of the collector or of a grid of slots contributed decisively to the overall impression they produced. 125 In paragraph 108 of the contested decision, the Board of Appeal stated that those differences were not negligible, small, or otherwise inconsequential, and that that was especially true when considering that the cover plate of the contested design was decorated with small grey dots. According to the Board of Appeal, the applicant could not validly argue that the appearance, lines and shapes of the drainage systems in question should be disregarded because they fulfilled a technical purpose or because there were indications in the evidence that there may be a trend, in the relevant sector, of offering rectangular elongated drain devices with closed cover plates. On the contrary, the features in question, although having a technical purpose, displayed shapes, dimensions and positions which could vary in view of the rather high degree of freedom of the designer and which had been dictated by aesthetic considerations. Similarly, the applicant’s claim that the contested design was identical to design No DM/059828, with the exception of the perforated cover plate, which, in its view, was dictated by technical considerations, cannot be upheld. Indeed, according to the Board of Appeal, the shape and position of the slots in the grid were elements which the designer had considerable freedom in designing and which could be worked on independently of or additionally to any technical function that those features may also perform. Thus, the shape of the slots may differ from one drainage device to another, and their position and arrangement may also differ, with the result that the appearance of those features may have an impact on the overall impression. 126 In paragraphs 109 and 110 of the contested decision, the Board of Appeal therefore found that, while the contested design produced the overall impression of an elegant, essential and minimal shower drainage channel with a decorated closed cover plate and side slots, the earlier designs produced overall impressions characterised by more standardised features, such as the circular water collector in the centre or a grid of slots. Furthermore, according to the Board of Appeal, the earlier designs did not have decorative features, whereas decorative features were present in the contested design. Although the applicant insisted that the presence of side slots in shower drainage channels having a closed cover plate was commonplace and also dictated by a technical function, the Board of Appeal found that, as represented, those side slots had a certain aesthetic value which helped to give the intervener’s shower drainage channel an elegant and minimalist general appearance. 127 In paragraph 112 of the contested decision, the Board of Appeal added that, for the same reasons and also in view of the fact that earlier designs 2, 4, 5 and 6 did not have a closed cover plate, but a perforated plate with slots of different numbers, shapes and dimensions, the Board found that the overall impression produced by those designs on the informed user was not the same as the overall impression produced by the contested design, which had a closed surface decorated with dots, and that those differences decisively affected the appearance of the designs at issue. The fourth plea 128 By the fourth plea, the applicant alleges that the Board of Appeal, in paragraphs 98 to 110 and 112 of the contested decision, erred in its assessment of the novelty or individual character of the contested design by comparing it with the designs reproduced in registration No DM/059828. According to the applicant, the comparison is erroneous because the Board of Appeal made it on the basis of the incorrect observation, in paragraphs 98 and 101 of the contested decision, that design 1 (shown in figures 1.1 and 1.2) and design 3 (shown in figures 3.1 and 3.2), as set out in registration No DM/059828, concerned shower drainage channels with a so-called ‘zero’, non-perforated cover plate (cover of rooster). 129 First, the design shown in figures 1.1 and 1.2 consists only of a drainage collector (of which figure 1.1 is the view from above and figure 1.2 the view from below), with no cover plate, perforated or otherwise, installed in or placed on it. Therefore, that design does not show a complete shower drainage channel like the contested design. It is established that the drainage collector presented by the design shown in figures 1.1 and 1.2 is built into the floor and, with the exception of the upper edges of the drainage collector, is not visible during normal use. For that reason, design 1 does not fall within the scope of protection of the Community design. The same is true of the other design referred to in paragraphs 98 and 101, namely design 3 (shown in figures 3.1 and 3.2), which, again, comprises only a drainage collector (of which figure 3.1 is the view from above, and figure 3.2 the view from below), with no cover plate, perforated or otherwise, installed in or placed on it. Moreover, the thin outer edges on the four sides of the designs shown in figures 1.1 and 1.2, referred to in paragraph 101 and in the second indent of paragraph 102 of the contested decision, are also hidden once the drain is built into the floor and are not visible during normal use. 130 Secondly, as regards design 5 (shown in figures 5.1 and 5.2) and design 6 (shown in figures 6.1 and 6.2), the Board of Appeal stated, in the third indent of paragraph 102 of its decision, that they concerned shower drainage channels with a perforated cover plate. However, those designs do not show a shower drainage channel. The images of the design in figures 5.1 and 5.2 show only a perforated cover plate (of which figure 5.1 is the view from above, visible only during normal use, and figure 5.2 the view from below). The same applies to the images of the design in figures 6.1 and 6.2 (figure 6.1 being the view from below and figure 6.2 the view from above, visible only during normal use). In so doing, the Board of Appeal compares the appearance of a complete drainage channel – the contested design – with that of a stand-alone cover plate which forms part of a drainage channel. 131 On reading the paragraphs of the contested decision relevant to the present plea, it is clear, according to the applicant, that the Board of Appeal overlooked the fact that the designs shown in figures 1.1, 1.2, 3.1 and 3.2 concern only drainage collectors (without a cover plate), that the designs shown in figures 5.1, 5.2, 6.1 and 6.2 concern only (perforated) cover plates, and that only designs 2 and 4 present a complete drainage channel, like the contested design, with a drainage collector and a cover plate installed in or placed on it. Consequently, the design shown in figures 1.1 and 1.2, together with the design shown in figures 5.1 and 5.2, form the appearance of design 2, while the design shown in figures 3.1 and 3.2, together with the design shown in figures 6.1 and 6.2, form the appearance of design 4. In reality, registration No DM/059828 reproduces only two earlier designs, namely designs 2 and 4, showing a complete drainage channel like the contested design. 132 The applicant adds that the finding made in the first indent of paragraph 102 of the contested decision is also incorrect. According to that finding, designs 1, 2, 3 and 5 of registration No DM/059828 present a circular water collector in the centre of their surface. However, according to the applicant, although designs 1 and 3 are in fact drainage collectors or water collectors, they are not visible during normal use. Designs 2 and 5 are not fitted with a water collector, but have a cover plate with a circular perforation in the centre of its surface. 133 The applicant submits that the finding made in the fifth indent of paragraph 102 and in paragraphs 106 and 107 of the contested decision is also incorrect. According to that finding, the cover plates for the drainage channel designs shown in registration DM/059828 (and therefore, according to the Board of Appeal, only designs 2 and 4) do not contain any decorative element, whereas the contested design’s cover plate is decorated with a pattern of dots. The applicant, for its part, considers that the cover plates of the designs under registration DM/059828 contain decoration in the form of a defined pattern of perforations. By contrast, the contested design’s cover plate is characterised by the absence of decorative elements, since it consists solely of a smooth, stainless steel cover plate, also known as a ‘zero’ cover plate. There is no decoration on that cover plate, either in the form of dots or in any other form. 134 The applicant therefore considers that the Board of Appeal erred as to the nature and appearance of the objects to be compared as earlier designs, because it compared the contested design first with the appearance of a drainage collector for a shower drainage channel, then with the appearance of a cover plate for a shower drainage channel and, lastly, with a complete shower drainage channel. It concludes from this that the feature or features that make it possible to distinguish the appearance of the contested design from the earlier designs are also subject to uncertainty. 135 EUIPO and the intervener dispute the applicant’s arguments. 136 As a preliminary point, it should be noted that the applicant does not dispute the definition of the informed user set out in paragraph 85 of the contested decision, or the finding that the designer’s freedom is relatively extensive, in paragraph 88 of that decision (see paragraph 24 above). Nor does it dispute the Board of Appeal’s finding, in paragraph 77 of that decision, that there are no features of the contested design which needed to be excluded from protection or attributed a substantially reduced role in their impact on any overall comparison as a result of being solely dictated by their technical function (see paragraph 23 above). Moreover, there is no reason to call into question that definition and those findings. 137 It is also common ground, following the judgment on appeal, that there is no requirement that the informed user of the contested design should know the product in which the earlier design is incorporated or to which it is applied (see paragraph 16 above). In other words, an earlier design incorporated in a product other than that concerned by the contested design constitutes, in principle, an earlier design which is relevant for the purpose of assessing the individual character within the meaning of Article 6 of Regulation No 6/2002, of the contested design (see paragraph 111 above). In the present case, the fact that the earlier designs are intended for industrial use for the drainage of liquid waste, and not for use as a shower drainage channel in a sanitary area such as a bathroom, does not therefore preclude their being taken into account as earlier designs which are relevant for the purpose of assessing the individual character of the contested design. 138 By the fourth plea, in essence, the applicant submits that the Board of Appeal erred in its comparison of the contested design with the earlier designs represented in registration No DM/059828. The Board of Appeal was wrong to find that the earlier designs represented by the views of the designs shown in figures 1.1 and 1.2, and then 3.1 and 3.2, concerned a non-perforated cover plate, whereas those designs concerned only a drainage collector. According to the applicant, those earlier designs are not visible during normal use (that is to say, once they are built into the floor), so they do not fall within the scope of Community design protection (see paragraphs 98 and 101 of the contested decision). Similarly, the Board of Appeal erred in finding that the earlier designs shown in figures 5.1, 5.2, 6.1 and 6.2 concerned drainage channels with a perforated cover plate, whereas they each comprised only a cover plate. The applicant concludes that only designs 2 and 4 of registration No DM/059828 represent a complete drainage channel, like the contested design, with the drainage collector and a cover plate incorporated in or placed on top of it. 139 In other words, the applicant considers that the contested design could be compared only with the two earlier designs 2 and 4, in so far as those two designs were the only ones, covered by registration No DM/059828, to concern complete ‘shower drainage channels’ composed of two elements, namely the drainage collector and cover plate. Design 2 of registration No DM/059828 Design 4 of registration No DM/059828 140 In that regard, first of all, it must be noted, as EUIPO did, that any error which the Board of Appeal might have made in defining the features of the designs other than designs 2 and 4 of registration No DM/059828 could not have had any effect on the legality of the contested decision, since the Board of Appeal did compare the contested design with designs 2 and 4 as earlier whole designs, that is to say, designs representing a complex product composed of two elements, namely a drainage collector and a cover plate, forming a shower drainage channel. Even if the Board of Appeal had also compared the contested design with the appearance of a drainage collector alone or a cover plate alone when it examined earlier designs 1, 3, 5 and 6, that could not invalidate the result of the comparison of the contested design with the complete shower drainage channels, namely earlier designs 2 and 4. 141 Next, the comparison between the contested design and earlier designs 2 and 4 is correct. That is so even if, contrary to what is stated in the third indent of paragraph 102 of the contested decision, earlier design 4 includes a cover plate. It is sufficient for that design to include, as stated by the Board of Appeal, a perforated plate the pattern of which is functional rather than decorative for the findings in paragraphs 109, 110 and 112 of the contested decision to be valid and without error as to the outcome. The very minor error made by the Board of Appeal in the third indent of paragraph 102 of that decision cannot therefore have any decisive effect on the legality of that decision. 142 Lastly, it should be noted that, in its written pleadings, the applicant does not put forward any argument capable of invalidating the findings made in paragraphs 109, 110 and 112 of the contested decision. 143 In addition, at the hearing, the applicant acknowledged that there had been a ‘problem’ with the Blücher catalogue representations because, while the drainage collector appeared in one photograph and the cover plate appeared in another, that collector and that plate were not represented together. In that regard, it should also be noted that an earlier design must be an earlier design which is ‘whole’ or comprises ‘all the component parts’, and cannot be produced from a combination of features, in accordance, in particular, with judgment of 19 June 2014, Karen Millen Fashions (C‑345/13, EU:C:2014:2013, paragraphs 25 and 35), cited in paragraph 109 above. In the present case, it must be noted, as EUIPO did at the hearing, that it is apparent from the file that the applicant did not produce any representation of a complete drainage system comprising the drainage collector and the cover plate, as sold in the Blücher catalogues. Therefore, the only earlier whole designs on which the applicant may rely are, in any event, earlier designs 2 and 4, under registration No DM/059828, which represent complete shower drainage channels. 144 The Board of Appeal was therefore right to consider, in paragraphs 109 and 110 of the contested decision, in essence, that, while the contested design produced the overall impression of an ‘elegant, essential and minimal’ shower drainage channel with a decorated, closed cover plate and side slots of which the aesthetic value contributed to that ‘elegant and minimalist’ appearance, the overall impression produced by the earlier designs, and in particular by designs 2 and 4, on the other hand, was different because it was characterised by more ‘standardised’, functional and non-decorative features, such as the centrally placed circular water collector (of design 2, according to the views of the design shown in figures 1.1 and 1.2, and of design 4, according to the views of the design shown in figures 3.1 and 3.2) or a grid of slots (of design 2, according to the views of the design shown in figures 5.1 and 5.2, and of design 4, according to the views of the design shown in figures 6.1 and 6.2). 145 The Board of Appeal was also right, in paragraph 112 of the contested decision, read in conjunction with paragraph 107 of that decision, to add, in essence, that, for the same reasons as those set out in paragraphs 109 and 110 of that decision, and taking into account the fact that earlier designs 2 and 4 had a functional and non-decorative perforated plate with slots, it considered that the overall impression produced by those designs on the informed user was different from that produced by the contested design, which had a closed cover plate decorated with dots and side slots with a certain aesthetic value. 146 Lastly, the Board of Appeal was right, in paragraph 113 of the contested decision, which is not expressly disputed by the applicant, to consider, in essence, that the abovementioned difference in the appearance of the features which had been the subject of the work of a designer with a high degree of freedom, was sufficient to produce a different overall impression despite the existence of certain overlaps, and thus to conclude that, purely on the basis of the earlier designs identified in the application for a declaration of invalidity, in particular design 2 (according to the views of the designs shown in figures 1.1, 1.2, 5.1 and 5.2) and design 4 (according to the views of the designs shown in figures 3.1, 3.2, 6.1 and 6.2), the contested design had individual character. 147 The fourth plea must therefore be rejected as unfounded. The fifth plea 148 By the fifth plea, the applicant claims that the Board of Appeal erred in holding, in paragraph 111 of the contested decision, in conjunction with paragraphs 29 and 30 of that decision, that the statements to which the applicant referred had not been sworn or affirmed, since most of those statements were emails and, moreover, came from the sphere of the applicant itself and were not supported by any independent declaration. The applicant assumes that the statements at issue are those which it attached as Annexes 4 to 7 to its reply of 2 April 2010, to which it also referred in paragraph 20 of its observations of 21 September 2018. According to the applicant, there was no reason not to take into account the content of those statements for the purpose of assessing the novelty and individual character of the contested design. 149 First of all, the applicant considers it ‘strange and inconsistent’, in the light of the third plea, that the Board of Appeal took those statements into consideration. The applicant produced the annexes in question at the same time as the photograph from page 33 of the Blücher catalogues, which the Board of Appeal rejected pursuant to Article 63(2) of Regulation No 6/2002 on the ground that it had not been produced in the context of the application for a declaration of invalidity of 3 September 2009. Although the applicant acknowledges that most of those statements are emails, it nevertheless points out that none of the parties involved, nor any of the adjudicating bodies which made the previous decisions, has ever called into question the accuracy or integrity of those emails. Those statements and their content have never been challenged at all. Furthermore, the applicant adds that those statements do not come from its own sphere, but that Annexes 4, 5 and 7 come from Blücher, an undertaking which is entirely independent of the applicant, and with which the applicant has no contractual, corporate or any other type of relationship, while Annex 6 comes from the intervener’s legal adviser. 150 EUIPO and the intervener dispute the applicant’s arguments. 151 In paragraph 111 of the contested decision, the Board of Appeal observed that the statements to which the applicant referred were not sworn or affirmed, since most of them were emails, and that, furthermore, they came from the sphere of the applicant itself and were not supported by any independent declaration coming, for instance, from manufacturers’ associations or chambers of commerce. Therefore, the Board of Appeal considered that it could not deprive the individual features of the contested design of aesthetic value in view of the documents referred to by the applicant. On the contrary, in the present case, according to the Board, account should be taken of the whole design and of the shape, size, position and proportion of its component parts. 152 By the fifth plea, in essence, the applicant submits that the Board of Appeal erred in depriving of probative value those statements and exchanges of emails from, inter alia, Blücher employees or I-Drain. 153 First of all, it is clear that the present plea is based on a misreading of the contested decision. It was not the intention of the Board of Appeal, in paragraph 111 of the contested decision, to deprive of any probative value the statements produced by the applicant in Annexes 4 to 7 to its reply of 2 April 2010 to the intervener’s observations before the Invalidity Division and concerning, in essence, the extent to which the contested design was aesthetic or functional. The Board of Appeal merely referred to the settled case-law of the General Court according to which, in essence, statements by third parties have a certain probative value, the force of which diminishes, however, in proportion to the interest of the signatory in the success of the case (see, to that effect, judgments of 16 July 2014, Nanu-Nana Joachim Hoepp v OHIM – Stal-Florez Botero (la nana), T‑196/13, not published, EU:T:2014:674, paragraph 32 and the case-law cited, and of 16 June 2015, H.P. Gauff Ingenieure v OHIM – Gauff (Gauff JBG Ingenieure), T‑585/13, not published, EU:T:2015:386, paragraph 28). 154 Next, irrespective of the probative value of those statements, it is also clear that the Board of Appeal did take those documents into account, as is apparent from its analysis in paragraph 111 of the contested decision. The Board of Appeal thus exercised the discretion conferred on it by Article 63(2) of Regulation No 6/2002 (see paragraphs 44 to 48 above). It was free to do so, since the documents identified as Annexes 4 to 7 to the applicant’s reply of 2 April 2010 did not concern the identification of the earlier designs. However, it should be borne in mind that those designs must be identified within the strict context of the application for a declaration of invalidity, which does not allow such discretion to be exercised (see the General Court’s reply to the third plea in paragraphs 40 to 69 above). 155 Lastly, in the context of its free assessment of the facts, the Board of Appeal was not bound by those statements. It could find, without erring in law, that such statements could not call into question the finding that the contested design had aesthetic rather than purely functional aspects. It is those aesthetic aspects which distinguish the overall impression produced by the contested design, which is that of an ‘elegant, essential and minimal’ shower drainage channel, from the more functional or ‘standardised’ impression produced by the earlier designs, as the Board of Appeal correctly found in paragraph 109 of the contested decision (see paragraph 144 above). 156 Furthermore, in so far as the applicant’s arguments may be interpreted as meaning that the applicant was deprived of the opportunity for the third party signatories of the statements to be heard in the course of oral proceedings and for witnesses to be heard before the Board of Appeal, as requested by the applicant under Articles 64 and 65 of Regulation No 6/2002, it should be noted that, in paragraphs 29 and 30 of the contested decision, the Board of Appeal considered, first of all, that oral proceedings were not expedient or necessary in the present case, secondly, that in the previous appeal proceedings, the applicant had objected to the intervener’s request for an oral hearing and, lastly, that it had sufficient elements, facts, arguments and evidence before it to enable it to take a decision. The Board of Appeal therefore rejected the request for a hearing and, for the same reasons, the request to hear witnesses. 157 First, as regards the request for oral proceedings, Article 64(1) of Regulation No 6/2002 provides that if EUIPO considers that oral proceedings would be expedient, they are to be held either at the instance of EUIPO or at the request of any party to the proceedings. 158 Thus, it is apparent from the wording of Article 64 of Regulation No 6/2002 and the expression ‘if the Office considers that oral proceedings would be expedient’ that EUIPO enjoys a broad discretion in organising oral proceedings. 159 Furthermore, it is apparent from the case-law relating to designs that the Board of Appeal enjoys a discretion as to whether oral proceedings before it are really necessary. That discretion regarding whether oral proceedings are necessary applies even where a party requests that oral proceedings be organised (judgment of 13 December 2017, Delfin Wellness v EUIPO – Laher (Infrared cabins and saunas), T‑114/16, not published, EU:T:2017:899, paragraph 114). 160 By analogy, according to the case-law relating to trade marks, a refusal is not vitiated by any manifest error where the party requesting oral proceedings does not establish that the Board of Appeal did not have all the information necessary for the adoption of its decision (see, to that effect and by analogy, judgment of 27 February 2018, Hansen Medical v EUIPO – Covidien (MAGELLAN), T‑222/16, not published, EU:T:2018:99, paragraphs 56 to 59). 161 That is the case here. The Board of Appeal, considering itself to be in possession of all the information necessary to make the contested decision, did not err in exercising its broad discretion. Furthermore, there is nothing in the file to suggest that the Board of Appeal did not have all the information needed as a basis for the operative part of that decision. 162 Secondly, Article 65(1) of Regulation No 6/2002 provides that, in any proceedings before EUIPO, it is possible to adopt measures of inquiry, including hearing the parties, requests for information, the production of documents and evidence, hearing witnesses, experts’ reports and statements in writing sworn or affirmed or having a similar effect under the law of the State in which they are drawn up. According to Article 65(3) of that regulation, if EUIPO considers it necessary for a party, witness or expert to give evidence orally, it is to issue a summons to the person concerned to appear before it for a hearing. 163 Thus, it is clear from the wording of Article 65 of Regulation No 6/2002 and from the expression ‘if the Office considers it necessary’ that EUIPO enjoys a broad discretion in organising the hearing of witnesses (see also, to that effect, order of 14 June 2021, TrekStor v EUIPO – Zagg (Protective cover for computer hardware), T‑512/20, not published, EU:T:2021:359, paragraph 32). 164 Therefore, the Board of Appeal was not required to hear the witnesses proposed, but enjoyed broad discretion in that regard, and exercised that discretion without committing any error in this case. 165 It is clear from the case-law concerning trade marks, by analogy, that there is no manifest error in refusing to hear witnesses where the party which made the request for the hearing of witnesses could have filed the testimonies of its witnesses in writing (see, to that effect and by analogy, order of 18 January 2018, W&O medical esthetics v EUIPO – Fidia farmaceutici (HYALSTYLE), T‑178/17, not published, EU:T:2018:18, paragraphs 15 to 24). The same applies, a fortiori, where, as in the present case, such witness statements have actually been submitted in writing. Moreover, reference should be made to the grounds already stated in paragraph 87 above. 166 The fifth plea must therefore be rejected as unfounded. The sixth plea 167 By the sixth plea, in the first place, the applicant alleges that the Board of Appeal erred in considering, in paragraphs 114 and 115 of the contested decision, that the contested design did not lack individual character or, therefore, novelty, and was therefore valid. It refers to each of the previous pleas, which are also considered in conjunction with each other. In the second place, it submits that the measures of inquiry, as referred to in Article 65 of Regulation No 6/2002, were not adopted, or even envisaged, contrary to paragraph 71 of the judgment on appeal. Similarly, the Board of Appeal also failed to respond to the applicant’s proposal to produce additional evidence, in particular by producing specifically designated witnesses, such a proposal having been reiterated before the General Court ‘in so far as necessary’. 168 EUIPO and the intervener dispute the applicant’s arguments. 169 In the first place, in paragraphs 114 and 115 of the contested decision, the Board of Appeal held that, since the contested design had individual character, it could not, a fortiori, lack novelty for the purposes of Article 5 of Regulation No 6/2002, and was therefore valid. 170 In that regard, it should be noted that the condition of individual character, referred to in Article 6 of Regulation No 6/2002, goes beyond the requirement of novelty, set out in Article 5 of that regulation, in terms of the degree of differentiation it requires in relation to each earlier design. Thus, according to the case-law, a design which is new may or may not have individual character (see, to that effect, judgment of 6 June 2013, Kastenholz v OHIM – Qwatchme (Watch dials), T‑68/11, EU:T:2013:298, paragraph 38). Conversely, a design which is not new cannot, a fortiori, have individual character. 171 It may be inferred from the fact that a design has individual character that it is, a fortiori, novel, as is the case here, whereas the fact that a design lacks individual character does not necessarily indicate that it lacks novelty, but is, in any event, sufficient to declare that design invalid. Conversely, lack of novelty is decisive in support of the conclusion that a design lacks individual character, whereas novelty does not necessarily indicate that a design has individual character, which is also required in order for it to be declared valid. 172 Consequently, where, as in the present case, an application for a declaration of invalidity of a design is made on the basis of the grounds set out in Articles 5 and 6 of Regulation No 6/2002 and in relation to those earlier designs, a finding that the contested design has individual character implies that that design should be declared valid in the light of those grounds for invalidity and those earlier designs. 173 In circumstances where a design is found to have individual character, as in the present case, it is not necessary for the adjudicating bodies of EUIPO to examine in detail the novelty requirement, since examining as a matter of priority whether a sign has individual character may be justified for reasons of methodology and procedural economy. Conversely, in circumstances where a design is found to lack novelty, examining the novelty requirement as a matter of priority may also be justified for the same reasons of methodology and procedural economy, since a finding of lack of novelty necessarily leads to the design at issue being declared invalid, without there being any need to examine expressly the condition of individual character. 174 In the light of the considerations set out in paragraphs 170 to 173 above, the Court finds that the Board of Appeal did not err in examining, for reasons of methodology and procedural economy, whether the contested design had individual character before concluding, a fortiori, that that design was novel. 175 In the second place, as regards measures of inquiry, it is sufficient to note that, in paragraph 71 of its judgment on appeal (cited in paragraph 84 above), the Court of Justice merely referred to the fact that ‘such a fact [was] able to be taken into account by EUIPO in order to adopt measures of inquiry on the basis of Article 65(1) of Regulation No 6/2002’. By using the wording ‘[was] able’, the Court of Justice thus recognised the broad discretion enjoyed by EUIPO for the purpose of adopting measures of inquiry under that provision (see paragraphs 162 and 163 above). Consequently, the Board of Appeal’s decision not to adopt measures of inquiry, in particular the hearing of witnesses, by virtue of its broad discretion can in no way be contrary to judgment on appeal, nor be otherwise erroneous. 176 Moreover, as regards the offers of evidence made repeatedly before the General Court, it should be observed that, under Article 85(3) of the Rules of Procedure of the General Court, ‘the main parties may, … produce or offer further evidence before the oral part of the procedure is closed … provided that the delay in the submission of such evidence is justified’. In the present case, as it concerns an administrative procedure which began in 2009, and given the absence of any new information before the Court, the delay in the submission of such evidence cannot, in any event, be justified. Moreover, the Court considers that since it has sufficient information available to it from the documents in the file, that evidence is not necessary for it to give a decision. 177 The sixth plea must therefore be rejected as unfounded. 178 In the light of all the foregoing considerations, the action must be dismissed in its entirety. Costs 179 Under Article 134(1) of the Rules of Procedure, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 180 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 (Ninth Chamber), hereby: 1. Dismisses the action; 2. Orders Group Nivelles NV to pay the costs. Costeira Kancheva Perišin Delivered in open court in Luxembourg on 27 April 2022. [Signatures] Table of contents Background to the dispute Forms of order sought Law The first and third pleas, concerning the identification of the earlier design The third plea The first plea The second plea, concerning the determination of the features of the contested design The fourth, fifth and sixth pleas, concerning the comparison of the designs at issue and the assessment of the individual character of the contested design Legislation and case-law The contested decision and individual reproduction of the designs at issue The fourth plea The fifth plea The sixth plea Costs * Language of the case: Dutch.