Opinion of the Advocate General — ECLI:EU:C:2018:97
Date: 2018-02-22
Language of the case: German
Subject matter: Intellectual, industrial and commercial property;Designs
Procedure: Action for annulment;Appeal - unfounded
Origin: Germany

Summary — Judgment of the Court (Ninth Chamber) of 5 July 2018 1. EU law — Interpretation — Methods — Interpretation according to context and objective 2. Community designs — Application for registration — Conditions — Representation of the design suitable for reproduction — Concept (Council Regulation No 6/2002, Arts 36(1) and (5) and 46(2); Commission Regulation No 2245/2002, Arts 4(1)(e) and 12(2)) 1. See the text of the decision. (see para. 48) 2. As regards the wording of Article 36(1)(c) of Regulation No 6/2002 on Community designs, it provides that the application for registration of a design must contain a ‘representation of the design suitable for reproduction’. That wording seems to emphasise the technical quality of the representation. However, the concept of representation encompasses, in itself, the idea that the design must be clearly identifiable. In addition, it should be noted that, whilst Article 4(1)(e) of Regulation No 2245/2002 implementing Regulation No 6/2002 does not add substantive requirements to that of Article 36(1)(c) of Regulation No 6/2002, it states, inter alia, that the representation must be of a quality permitting all the details of the matter for which protection is sought to be clearly distinguished. Analysis of the wording of Article 36(1)(c) therefore leads to the conclusion that the representation of the design for which registration is sought must enable that design to be clearly identified. The literal interpretation of Article 36(1)(c) of Regulation No 6/2002 is confirmed by the teleological interpretation of that provision, which must contribute to the proper functioning of the system of registration of designs. Accordingly, the function of the graphic representation requirement is, in particular, to define the design itself in order to determine the precise subject of the protection afforded by the registered design to its proprietor. In that regard, it should be noted that the entry of a design in a public register has the aim of making it accessible to the competent authorities and the public, particularly to economic operators. On the one hand, the competent authorities must know with clarity and precision the nature of the constituent elements of a design in order to be able to fulfil their obligations in relation to the prior examination of applications for registration and to the publication and maintenance of an appropriate and precise register of designs. On the other hand, economic operators must be able to acquaint themselves, with clarity and precision, with registrations or applications for registration made by their current or potential competitors and thus to obtain relevant information about the rights of third parties. Such a requirement is intended to ensure legal certainty for third parties. It follows that the Community design system arising from Regulation No 6/2002 confirms the interpretation that results from the wording of Article 36(1)(c) of that regulation by requiring that the representation of a design for which registration is sought makes it possible to identify that design clearly. That conclusion is indeed also confirmed by the fact that the obtaining of a date of filing, which, in accordance with Article 38 of Regulation No 6/2002, is the date on which documents containing the information specified in Article 36(1) are filed with the European Union Intellectual Property Office (EUIPO), enables the proprietor of the design concerned to benefit from the right of priority, as provided for in Article 41 of Regulation No 6/2002. The fact that the date of filing enables that right of priority to be obtained justifies in itself the requirement that the representation must not lack precision as regards the design for which registration is sought. Thus, an imprecise application for registration would give rise to the risk that a design in respect of which the matter to be protected is not clearly identified would obtain excessive protection under the right of priority. Finally, the interpretation that Article 36(1)(c) of Regulation No 6/2002 requires the representation of the design contained in the application for registration to enable the matter for which protection is sought to be clearly identified is also confirmed by the contextual analysis of that provision. In that respect, since Article 36(5) of Regulation No 6/2002 provides that the application for registration must comply with the conditions laid down in Regulation No 2245/2002, reference should be made to other provisions of the latter regulation relating to the application for registration. Thus, it should be noted that Article 12(2) of Regulation No 2245/2002 provides that a correction of the application for registration cannot change the representation of the design concerned. That necessarily implies that, before the application for registration can obtain a date of filing, it must contain a representation that enables the matter for which protection is sought to be identified. It is not possible to interpret Regulation No 6/2002 as allowing an application for registration to be considered validly filed when it does not enable the design for which registration is sought to be clearly identified and that deficiency can no longer be remedied. Accordingly, the literal, teleological and contextual analysis of Article 36(1)(c) of Regulation No 6/2002 leads to the conclusion that that provision must be interpreted as requiring the representation of a design for which registration is sought to clearly identify that design, which is the subject of the protection sought by that application. It follows from Article 46(2) of Regulation No 6/2002 that an application which contains deficiencies relating to the requirements referred to in Article 36(1) of that regulation that have not been remedied within the prescribed period is not to be dealt with as an application for a registered Community design and that, consequently, no date of filing is attributed to it. (see paras 49-61)