Opinion of the Advocate General — ECLI:EU:C:2011:302
Date: 2011-05-12
Language of the case: English
Subject matter: Intellectual, industrial and commercial property;Designs
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible

Summary of the Judgment 1. Community designs – Grounds for invalidity – Conflict with a prior design – Design not producing on the informed user a different overall impression from that produced by the prior design – Informed user – Meaning (Council Regulation No 6/2002, Arts 6(1), 10(1) and 25(1)(d)) 2. Community designs – Appeals procedure – Actions before the Community judicature – Jurisdiction of the General Court – Manifest errors of assessment – Discretion of the Office (Council Regulation No 6/2002, Art. 61) 1. The concept of the ‘informed user’ must be understood as lying somewhere between that of the average consumer, applicable in trade mark matters, who need not have any specific knowledge and who, as a rule, makes no direct comparison between the trade marks in conflict, and the sectoral expert, who is an expert with detailed technical expertise. Thus, the concept of the informed user may be understood as referring, not to a user of average attention, but to a particularly observant one, either because of his personal experience or his extensive knowledge of the sector in question. The very nature of the informed user means that, when possible, he will make a direct comparison between the designs at issue. However, it is conceivable that such a comparison may be impracticable or uncommon in the sector concerned, in particular because of specific circumstances or the characteristics of the devices which the designs represent. There being no precise indications to that effect in the context of Regulation No 6/2002 on Community designs, the Union legislature cannot be regarded as having intended to limit the assessment of potential designs to a direct comparison. As regards the informed user’s level of attention, although the informed user is not the well-informed and reasonably observant and circumspect average consumer who normally perceives a design as a whole and does not proceed to analyse its various details, he is also not an expert or specialist capable of observing in detail the minimal differences that may exist between the designs in conflict. Thus, the qualifier ‘informed’ suggests that, without being a designer or a technical expert, the user knows the various designs which exist in the sector concerned, possesses a certain degree of knowledge with regard to the features which those designs normally include, and, as a result of his interest in the products concerned, shows a relatively high degree of attention when he uses them. (see paras 53, 55, 57, 59) 2. In the context of an action for annulment brought against a decision of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), the General Court has jurisdiction to conduct a full review of the legality of OHIM’s assessment of the particulars submitted by an applicant. As regards the scope of the judicial review by the General Court, the General Court may afford OHIM some latitude, in particular when OHIM is called upon to perform highly technical assessments, and restrict itself, in terms of the scope of its review of the Board of Appeal’s decisions in industrial design matters, to an examination of manifest errors of assessment. (see paras 66-67)