Opinion of the Advocate General — ECLI:EU:C:2017:779
Date: 2017-10-19
Language of the case: German
Subject matter: General provisions;Intellectual, industrial and commercial property;Designs
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Second Chamber), 8 March 2018 1. EU law — Interpretation — Provision containing no express reference to the law of Member States — Independent and uniform interpretation — Features of appearance of a product solely dictated by its technical function — Definition for the purposes of Article 8(1) of Regulation No 6/2002 (Council Regulation No 6/2002, Art. 8(1)) 2. Community designs — Conditions for protection — Design dictated by its technical function — Features of appearance of a product solely dictated by its technical function — Criteria for assessment — Existence of alternative designs — Irrelevant (Council Regulation No 6/2002, Recitals 5, 7 and 10, Arts 3(a), 6(1), 8(1), 10(1)) 3. Community designs — Conditions for protection — Designs dictated by their technical function — Features of appearance of a product solely dictated by its technical function — Criteria for assessment — — Not included (Council Regulation No 6/2002, Art. 8(1)) 1. See the text of the decision. (see paras 19-21) 2. Article 8(1) of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs must be interpreted as meaning that in order to determine whether the features of appearance of a product are exclusively dictated by its technical function, it must be established that the technical function is the only factor which determined those features, the existence of alternative designs not being decisive in that regard. First of all, as regards the wording of Article 8(1) of Regulation No 6/2002, it must be held that in the absence of any definition of that expression that regulation does not lay down any criteria for determining whether the relevant features of appearance of a product are solely dictated by its technical function. Therefore, it does not follow from that article or any other provisions of that regulation that the existence of alternative designs which fulfil the same technical function as that of the product concerned is the only criterion for determining the application of that article. Next, as regards the context of Article 8(1) of Regulation No 6/2002, it must be observed that that provision appears in Section 1 of Title II thereof, entitled ‘Requirements for protection’, and refers to cases in which protection is not conferred by a Community design on the features of appearance of a product where they are dictated solely by its technical function. According to recital 10 of that regulation, it does not follow from the exclusion of protection in that case that a design must have an aesthetic quality. Thus, as the Advocate General observed, in point 27 of his Opinion, it is not essential for the appearance of the product in question to have an aesthetic aspect to be protected under that regulation. However, Article 3(a) of Regulation No 6/2002 defines ‘design’ as the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation. Furthermore, Article 6(1) thereof, concerning the individual character of the design, which is one of the requirements for protection, and Article 10(1) thereof concerning the extent of that protection, both refer to the ‘overall impression’ that that design makes on an informed user. It follows that, under the system laid down by Regulation No 6/2002, appearance is the decisive factor for a design (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 62). Such a finding supports an interpretation of Article 8(1) of Regulation No 6/2002 according to which that provision excludes from the protection conferred by that regulation a case in which the need to fulfil a technical function of the product concerned is the only factor determining the choice by the designer of a feature of appearance of that product, while considerations of another nature, in particular those related to its visual aspect, have not played a role in the choice of that feature. Finally, such an interpretation of that provision is supported by the objective pursued by Regulation No 6/2002. It is clear from recitals 5 and 7 that that regulation aims to create a Community design which is directly applicable in each Member State which is protected in one area encompassing all Member States, encouraging the innovation and development of new products as well as investment in their production by offering enhanced protection for industrial design. As regards, in particular, Article 8(1) of Regulation No 6/2002, read in the light of recital 10 thereof, that provisions intends to prevent technological innovation from being hampered by granting design protection to features dictated solely by a technical function of a product. In light of the foregoing, it must be held that Article 8(1) of Regulation No 6/2002 excludes protection under the law on Community designs for features of appearance of a product where considerations other than the need for that product to fulfil its technical function, in particular those related to the visual aspect, have not played any role in the choice of those features, even if other designs fulfilling the same function exist. (voir points 22-29, 31, 32, operative part 1) 3. Article 8(1) of Regulation No 6/2002 must be interpreted as meaning that, in order to determine whether the relevant features of appearance of a product are solely dictated by its technical function, within the meaning of that provision, the national court must take account of all the objective circumstances relevant to each individual case. In that regard, there is no need to base those findings on the perception of an ‘objective observer’. As the Advocate General stated in essence, in points 66 and 67 of his Opinion, such an assessment must be made, in particular, having regard to the design at issue, the objective circumstances indicative of the reasons which dictated the choice of features of appearance of the product concerned, or information on its use or the existence of alternative designs which fulfil the same technical function, provided that those circumstances, data, or information as to the existence of alternative designs are supported by reliable evidence. (see paras 37, 38, operative part 2)