Judgment — ECLI:EU:T:2026:300
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‑578/25, 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 1156/2024‑3) (‘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 5 June 2013 under No 2249763‑0012 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, included in the promotional brochure of a company named Vesta Logistics EOOD, containing offers valid from 3 May 2010 to 5 June 2010: 6 On 18 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 the disclosure of the earlier design, it considered that the brochure submitted by the intervener (see paragraph 5 above) was sufficient for it to be considered 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 Admissibility of Annex A.3 to the application 12 EUIPO contends that the amended brochure produced in Annex A.3 to the application is a new document, submitted for the first time before the Court. Consequently, that document is not admissible. 13 It should be noted that the applicant produced, in Annex A.3 to its application, an amended version of the brochure which had been used to establish the disclosure of the earlier design. In that document, it altered the dates and location of the various images using the software Paint. It must be pointed out that that document does not appear in the file relating to the proceedings before the Board of Appeal. 14 In that regard, it should be noted that, according to Article 61 of Regulation No 6/2002, the Court’s review of the legality of a decision of the Board of Appeal must relate to the issues of law raised before the Board of Appeal. Therefore, it is not the Court’s function to examine new pleas introduced before it or to review the facts in the light of evidence adduced for the first time before it. To admit such evidence would be contrary to Article 188 of the Rules of Procedure of the General Court, according to which the parties’ pleadings may not change the subject matter of the proceedings before the Board of Appeal (see, to that effect, judgment of 23 October 2013, Viejo Valle v OHIM – Établissements Coquet (Cup and saucer with grooves and soup dish with grooves), T‑566/11 and T‑567/11, EU:T:2013:549, paragraph 63). 15 It follows that Annex A.3 to the application must be rejected as inadmissible. Substance 16 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. 17 The applicant submits that the brochure submitted by the intervener has no reliable date and cannot therefore serve as admissible evidence of the disclosure of the earlier design. It submits that it is evidence entirely fabricated for the purposes of the present invalidity proceedings and that creating the screenshot presented would be no problem for a person with minimal technical knowledge and would require very little time. It is not a professional design which might suggest that that document actually existed on the date indicated. Similarly, the applicant criticises the Board of Appeal for having considered that the brochure in question, on its own, constituted sufficient evidence of the disclosure of the earlier design and submits that that brochure is not accompanied by any additional evidence – for example that Vesta Logistics sold doors – or any other relevant evidence. 18 EUIPO and the intervener dispute the applicant’s claims. 19 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. 20 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). 21 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. 22 A design is deemed to have been disclosed once the party asserting it has proved the events constituting the disclosure. 23 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). 24 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). 25 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). 26 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). 27 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). 28 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). 29 It is in the light of those principles that the present action must be examined. 30 In the present case, the Board of Appeal found, as the Invalidity Division had, that the brochure produced by the intervener constituted sufficient evidence of disclosure of the earlier design within the meaning of Article 7(1) of Regulation No 6/2002. It noted, inter alia, that on the first page of that brochure the earlier design was reproduced with the indication ‘MDF ВРАТА ОСТЪКЛЕНА’, offered with a 15% discount at a price of 143 leva (BGN) (approximately EUR 73). Similarly, the first page of the brochure identified also the provider concerned, Vesta Logistics, a company unrelated to the intervener, the contact details of that company and the period of validity of the offer, namely from 3 May 2010 to 5 June 2010. 31 The Board of Appeal inferred from this that, thanks to its structured and cohesive format, the brochure constituted a complete, informative and professionally designed promotional tool. According to the Board of Appeal, the information contained therein, namely the presence of contact details, of products offered, of pricing and offer dates, combined with the ‘perishable’ nature of such information and the fact that brochures are issued for a short duration and are distributed promptly, demonstrates that the document displays the characteristics of a typical commercial marketing brochure which must have been distributed before or during the stated promotional period. Additionally, since the brochure was issued by a third party, the fact that the intervener had it in its possession was sufficient proof that it was made available to the public. In that context, according to the Board of Appeal, there was no need to show further that Vesta Logistics was engaged in door sales or that that company existed at the relevant time. What was determinative for the purposes of disclosure is the source of the disclosure, namely the brochure, the clear representation of the earlier design and a disclosure date which precedes the filing date of the contested design. 32 In that regard, it should be noted that the brochure produced by the intervener attests to the disclosure of the earlier design in 2010, that is to say, before the application for the contested design was filed in 2013. That brochure contains, in addition to the image of the earlier design, the dates of validity of the promotional offer which precedes the filing of the application for the contested design and the name of the company behind that offer, which is a third party to the intervener. In addition, it must be noted, as observed by EUIPO, that the fact that the intervener was in possession of a brochure originating from a third party is such as to prove that it was made public (see, to that effect, judgment of 3 July 2024, Canalones Castilla v EUIPO – Canalones Novokanal (Water-collection guttering or waterspout), T‑329/22, not published, EU:T:2024:438, paragraph 29). 33 The Board of Appeal’s findings, recalled in paragraphs 30 and 31 above, cannot be called into question by the applicant’s claims. 34 First, contrary to what the applicant maintains, the temporal indications relating to the validity of the promotional offer – from 3 May to 5 June 2010 – which predate the application for registration of the contested design are reliable. As the Board of Appeal correctly noted, such offers are necessarily distributed before or during the validity period. Accordingly, in the absence of indications to the contrary, there is no need to call into question the Board of Appeal’s finding that the brochure submitted by the intervener was disclosed on the dates indicated. 35 In that regard, it must be added that it is sufficient that the disclosure of an earlier design take place at a time which can be identified with reasonable certainty as being prior to the filing date or the priority date of the contested Community design, even if the exact date of disclosure is not known (see, to that effect, judgment of 3 July 2024, Water-collection guttering or waterspout, T‑329/22, not published, EU:T:2024:438, paragraph 31 and the case-law cited). That is the case here. 36 Second, as regards the applicant’s claims that the brochure was fabricated or manipulated for the purposes of the present invalidity proceedings, with the result that it constitutes inadmissible evidence, it must be recalled that the mere abstract possibility that the content or date of an item of evidence may be manipulated is not a sufficient ground to undermine its credibility which may be undermined only by invoking facts that concretely suggest a manipulation (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 49 and the case-law cited). 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 evidence relied on (see, to that effect, 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 31). 37 As the Board of Appeal found, however, the applicant has not submitted any specific evidence or information explaining why the brochure was fabricated or manipulated for the purposes of the present invalidity proceedings, but merely offers abstract speculation. 38 Accordingly, it must be held that the Board of Appeal was right to conclude that, in the absence of specific evidence, mere allegations of manipulation were not sufficient to cast doubt on the credibility of that evidence relied on by the intervener in support of its application for a declaration of invalidity. 39 Moreover, as EUIPO and the intervener have maintained, it must be held that the fact that the brochure in question could easily have been amended does not mean that it was. 40 Third, as regards the applicant’s claim that the Board of Appeal could not conclude that the earlier design had been disclosed solely on the basis of the brochure produced and that, consequently, additional documents should have been submitted by the intervener in order to prove the commercial activity of the company which issued that brochure, it must be rejected as unfounded. As has already been found in paragraph 32 above, the brochure produced by the intervener contains all the information necessary to conclude that the earlier design had in fact been disclosed before the application for the contested design was filed. Consequently, the Board of Appeal was right to conclude that additional evidence relating to the commercial activity of the company which issued the brochure at issue was not necessary in the present case. 41 Lastly, it should be recalled that, in accordance with the case-law recalled in paragraph 23 above, where disclosure has been demonstrated, it is 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 essentially found. During the administrative procedure, the applicant merely claimed that the brochure in question was not capable of demonstrating disclosure of the earlier design by putting forward, in essence, the same arguments as it has before the Court. 42 In the light of all of the foregoing, the single plea in law must be rejected and the action dismissed in its entirety. Costs 43 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. 44 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. 45 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.