JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
14 January 2026 (*)
( European Union design – Invalidity proceedings – Registered EU design representing a box with a lid – Grounds for invalidity – Individual character – Different overall impression – Novelty – Articles 5 and 6 and Article 25(1)(b) of Regulation (EC) No 6/2002 in the version prior to Regulation (EU) 2024/2822 )
In Case T‑517/24,
Froneri Bulgaria EOOD, established in Sofia (Bulgaria), represented by K. Gogov, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by J. Ivanauskas, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Daesef AD, established in Sofia, represented by E. Bojinova-Miller, lawyer,
THE GENERAL COURT (Ninth Chamber),
composed of S. Kingston, President, A. Marcoulli and P. Zilgalvis (Rapporteur), 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, Froneri 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 30 July 2024 (Case R 995/2023-3) (‘the contested decision’).
Background to the dispute
2        On 1 April 2021, the applicant filed an application with EUIPO for a declaration of invalidity of the EU design registered following an application filed on 10 January 2018 by the intervener, Daesef AD, which is represented in the following views:
3        The products to which the design, in respect of which a declaration of invalidity was sought, is intended to be applied were in Class 09.03 of the Locarno Agreement of 8 October 1968 establishing an International Classification for Industrial Designs, as amended, and corresponded to the following description: ‘boxes with lids, boxes [packaging], packaging for foodstuffs, flexible opening containers, ice cream boxes’.
4        The ground relied on in support of the application for a declaration of invalidity was that 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 amending Regulation No 6/2002 and repealing Commission Regulation (EC) No 2246/2002 (OJ L, 2024/2822), read in conjunction with Article 4(1) of that regulation.
5        The application for a declaration of invalidity was based on the lack of novelty and individual character of the contested design, in relation to the following earlier designs:
–        European Union design No 3465541-0001 (‘earlier design D 1’):
–        the designs of various ice cream containers offered under the trade mark Familia (‘earlier design D 2’), represented, inter alia, in a screenshot from a video clip advertising Familia ice cream:
6        On 10 March 2023 the Invalidity Division rejected the application for a declaration of invalidity. It found that the contested design had individual character and was new in relation to the earlier designs.
7        On 10 May 2023, the applicant filed a notice of appeal with EUIPO against the decision of the Invalidity Division.
8        By the contested decision, the Board of Appeal dismissed the appeal on the ground that the overall impression produced by the contested design was different from that of the earlier designs relied on in support of the application for a declaration of invalidity. Consequently, it found that the contested design had individual character, within the meaning of Article 6(1)(b) of Regulation No 6/2002, and was new, within the meaning of Article 5(1)(b) of that regulation.
Forms of order sought
9        The applicant claims that the Court should:
–        annul the contested decision;
–        declare the contested design invalid;
–        order EUIPO and the intervener to pay the costs of the proceedings before the Invalidity Division, the Board of Appeal and the Court.
10      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs in the event that an oral hearing is convened.
11      The intervener contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
The subject matter of the applicant’s second head of claim
12      By the second head of claim, the applicant requests that the Court declare the contested design invalid.
13      The aim of that head of claim is, in reality, for the Court to adopt the decision which, according to the applicant, the Board of Appeal should have taken when the matter was brought before it. It is apparent from the second sentence of Article 60(1) of Regulation No 6/2002 that the Board of Appeal may, after annulling the contested decision, exercise any power within the competence of the department of EUIPO which took that decision and thus in the present case, declare the contested design invalid (see, to that effect, judgment of 10 June 2020, L. Oliva Torras v EUIPO – Mecánica del Frío (Vehicle couplings), T‑100/19, EU:T:2020:255, paragraph 29 and the case-law cited).
14      Accordingly, it must be held that, by that request, the applicant has made a request for alteration, pursuant to Article 61(3) of Regulation No 6/2002, asking the Court to adopt the decision which the Board of Appeal should have taken (see, to that effect, judgments of 8 May 2024, Puma v EUIPO – Road Star Group (Footwear), T‑757/22, EU:T:2024:291, paragraph 15 and the case-law cited, and of 8 May 2024, Puma v EUIPO – Fujian Daocheng Electronic Commerce (Footwear), T‑758/22, EU:T:2024:292, paragraph 12 and the case-law cited).
15      It is when the substance of the appeal is examined that it will be for the Court to decide, should one of the pleas in law in the application be well founded, whether that plea enables it to alter the contested decision on the basis of the established factual and legal situation or, if not, whether that plea can lead only to the annulment of the decision (see, to that effect, judgment of 10 June 2020, Vehicle couplings, T‑100/19, EU:T:2020:255, paragraph 31and the case-law cited).
Substance
16      The applicant relies in essence on two pleas in law, the first alleging infringement of Article 6(1)(b) of Regulation No 6/2002, and the second alleging infringement of Article 5(1)(b) of that regulation.
The first plea in law, alleging infringement of Article 6(1)(b) of Regulation No 6/2002
17      The applicant claims that the Board of Appeal made an incorrect assessment of the individual character of the contested design. This plea consists of two complaints, relating, first, to the definition of the category of products concerned by that design and, second, to the outcome of the comparison of the overall impressions produced on the informed user by the designs at issue.
18      EUIPO and the intervener dispute the applicant’s arguments.
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, which include, in particular, novelty and individual character.
20      According to Article 6(1)(b) of Regulation No 6/2002, a registered EU 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 which has been made available to the public before the date of filing the application for registration or, if a priority is claimed, the date of priority.
21      The assessment of the individual character of an EU design is carried out, in essence, in four stages. That examination consists in 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; second, 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; third, the designer’s degree of freedom in developing the design, the influence of which on individual character is in inverse proportion; and, fourth, 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, Visi/one v EUIPO – EasyFix (Display holder for vehicles), T‑74/18, EU:T:2019:417, paragraph 66 and the case-law cited).
22      In that regard, it should be noted that, in paragraphs 42 to 45 of the contested decision, the Board of Appeal stated, in essence, that the informed user of the contested design was anyone who habitually purchased boxes with lids and packaging for foodstuffs, who put them to their intended use, who possessed a certain degree of knowledge with regard to the features that those designs normally included and who had become informed on the subject. Furthermore, in paragraph 41 of the contested decision, the Board of Appeal stated that the designer of the contested design had a high degree of freedom in so far as he or she had infinite possibilities for altering the shape of the packaging, material, decoration and colouring.
23      As regards the alleged error made by the Board of Appeal with respect to the informed user, it is sufficient to state that no specific argument is put forward by the applicant in support of that claim.
24      In those circumstances, it is necessary to examine, first, whether the Board of Appeal correctly analysed the category of products concerned by the contested design and, second, whether the overall impression produced by that design differs from that produced by the earlier designs.
–       The products concerned by the contested design
25      In paragraph 37 of the contested decision, the Board of Appeal found that the contested design was intended to be applied, inter alia, to boxes with lids, packaging for foodstuffs or flexible opening containers.
26      The applicant submits that the Board of Appeal made an error of assessment in determining the category of products concerned by the contested design. According to the applicant, the Board of Appeal should have defined the sector concerned more precisely and stated that the contested design was also intended to be applied to ice cream boxes.
27      EUIPO contends that the products concerned by the contested design are clearly identified by the Board of Appeal and already include ice cream boxes.
28      In order to ascertain the product to which the contested design is intended to be applied, the relevant indication in the application for registration of that design should be taken into account, but also, where necessary, the design itself, in so far as it makes clear the nature of the product, its intended purpose or its function (see, to that effect, judgment of 18 March 2010, Grupo Promer Mon Graphic v OHIM – PepsiCo (Representation of a circular promotional item), T‑9/07, EU:T:2010:96, paragraph 56).
29      In the present case, it is apparent from the description accompanying the application for registration of the contested design that the products covered by that design were described as ‘boxes with lids, boxes [packaging], packaging for foodstuffs, flexible opening containers, ice cream boxes’. The intervener therefore chose not to limit the registration of the contested design solely to ice cream boxes. The terms ‘boxes with lids’ or ‘boxes [packaging]’, referred to in that application, relate without restriction to boxes and food packaging in general, which includes ice cream boxes.
30      Furthermore, as regards the representations of the contested design, reproduced in paragraph 2 above, it must be stated that they also do not reveal the nature, the intended purpose or the function of the products concerned by that design. Indeed, there is nothing in that design to indicate that it is intended to be applied only to ice cream boxes, to the exclusion of any other box.
31      In those circumstances, the applicant has not succeeded in demonstrating that the Board of Appeal made an error of assessment in finding that the contested design was intended to be applied to boxes with lids, packaging for foodstuffs or flexible opening containers.
–       The comparison of the overall impressions produced by the designs at issue
32      The Board of Appeal found that the overall impression produced by the contested design on the informed user was different from that produced by the earlier designs and concluded, in paragraph 59 of the contested decision, that the contested design had individual character.
33      As regards the differences between the contested design and the earlier designs, the Board of Appeal found as follows. First, it noted that, in the contested design, the container was shaped like a ‘portion of an inverted conical shape’, whereas the earlier designs represented a tub in an oval rectangular shape. Secondly, it held that the sides of the container in the contested design were longer than those of the containers represented in the earlier designs. Thirdly, the degree of the angles of inclination of the sides is greater in the contested design than in the earlier designs, in which the angles of inclination appear, rather, to be right angles. Fourthly, the contested design has a smaller, more compact base, in contrast to the elongated and larger base of the earlier designs. Fifthly, the contested design has a greater height from the base to the upper part of the container compared to the earlier designs. Sixthly, the tub represented in the contested design is deeper, whereas that represented in the earlier designs is shallower.
34      As regards the identical features of the designs at issue – in essence, the fact that the products to which the designs at issue are intended to be applied consist of a two-piece container (a tub and a lid) and contain a flat lid of the same oval shape with a rim, rounded edges and engraved elements, and a tub made of a transparent material, with round edges, oval walls and elevated border lines – the Board of Appeal found that they were not sufficient to determine that those designs produced the same overall impression.
35      The applicant submits that the Board of Appeal did not correctly determine the differences between the designs at issue. Furthermore, the Board of Appeal downplayed the significance of the identical features of the designs under comparison in the assessment of the overall impressions produced by those designs. Moreover, the Board of Appeal did not take into account certain other relevant factors which are important for the global assessment of the designs at issue.
36      EUIPO and the intervener dispute the applicant’s arguments.
37      According to settled case-law, the individual character of a design results from an overall impression of difference or 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 16 February 2017, Antrax It v EUIPO – Vasco Group (Thermosiphons for radiators for heating), T‑828/14 and T‑829/14, EU:T:2017:87, paragraph 53 and the case-law cited).
38      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 characteristics disclosed in the contested design and must relate solely to the characteristics protected, without taking account of the characteristics excluded from the protection. The comparison must relate to the designs, in principle, as registered and the invalidity applicant cannot be required to produce a graphic representation of the prior design, 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).
39      In the assessment of the individual character of a design in relation to any previous presence in the design corpus, account must be taken of the nature of the product to which that design applies or in which it is incorporated, in particular the industrial sector to which it belongs (see recital 14 of Regulation No 6/2002), the degree of freedom of the designer in developing the design (see Article 6(2) of Regulation No 6/2002), whether there is saturation of the state of the art, which might make the informed user more attentive to the differences in the designs compared, and also the manner in which the product concerned is used, in particular the way it is normally handled (see judgment of 7 November 2013, Budziewska v OHIM – Puma (Bounding feline), T‑666/11, not published, EU:T:2013:584, paragraph 31 and the case-law cited).
40      There is no requirement, under settled case-law, to weight the features of the designs in order to establish whether the overall impression which the contested design produces on the informed user is different from that produced by the earlier design (judgment of 6 June 2019, Rietze v EUIPO – Volkswagen (Motor vehicle VW Caddy Maxi), T‑191/18, not published, EU:T:2019:378, paragraph 45). There is, in principle, no reason to presume that the informed user will focus solely on certain elements of a design (judgment of 25 October 2013, Merlin and Others v OHIM – Dusyma (Games), T‑231/10, not published, EU:T:2013:560, paragraph 39).
41      Where the designs at issue differ in their shape and that shape is among the most visible and important elements in the sector concerned, the user may perceive sufficiently marked differences between the designs at issue (see, to that effect, judgment of 24 January 2024, TA Towers v EUIPO – Wobben Properties (Building materials), T‑201/22, not published, EU:T:2024:27, paragraphs 58 to 62).
42      On the other hand, the informed user pays only limited attention to elements that are totally banal and common to all examples of the type of product in question and will focus on features that are arbitrary or different from the norm (judgment of 21 June 2017, Kneidinger v EUIPO – Topseat International (Toilet lid), T‑286/16, not published, EU:T:2017:411, paragraph 45) and on the most visible and most important elements (see, to that effect, judgment of 13 June 2019, Display holder for vehicles, T‑74/18, EU:T:2019:417, paragraph 91).
43      Where there is a considerable degree of design freedom, minor differences between the designs at issue are insufficient for those designs to produce a different overall impression (see, to that effect, judgment of 29 November 2018, Sata v EUIPO – Zhejiang Auarita Pneumatic Tools (Paint spray gun), T‑651/17, not published, EU:T:2018:855, paragraph 45).
44      It is in the light of those considerations that it must be assessed whether the Board of Appeal was right to find that the contested design had individual character within the meaning of Article 6 of Regulation No 6/2002.
45      In the first place, it is necessary to examine the applicant’s arguments that the Board of Appeal did not correctly determine the differences between the designs at issue.
46      The applicant disputes the Board of Appeal’s finding that there are significant differences in the shape of the container to which the designs at issue are intended to be applied, given that the contested design represents an inverted conical shape, whereas the earlier designs represent an oval rectangular shape. According to the applicant, the designs at issue represent the same conical shape. Furthermore, it claims that the Board of Appeal erred in finding that the degree of the angles of inclination in the contested design was greater than that in the earlier design. In addition, the Board of Appeal erred in finding that there was a difference in the width of the base and in the bottom-to-top proportion of the designs at issue.
47      In that regard, it should be observed that there are indeed some similarities in the shape of the containers represented in the designs at issue. It is apparent from the representations of the designs at issue reproduced in paragraphs 2 and 5 above that they have three main surfaces, namely a lower horizontal surface (base), an upper horizontal surface (lid) and a curved and inclined wall which connects the first two surfaces and runs all the way around the container. The lower and upper surfaces consist of two parallel lines joined by two curved lines. The lower surface is smaller than the upper surface. The curved vertical wall between the lower and upper surfaces is inclined outwards.
48      However, without it being necessary to rule on the question whether the earlier designs represent an oval rectangular shape, as held by the Board of Appeal, it is sufficient to note that the representations of the designs at issue also show, contrary to what the applicant claims, that the angles of inclination of the walls of the contested design are significantly greater than those of the earlier designs and that the base of the contested design is smaller and more compact than that of the earlier designs, which have a larger, more elongated base. Furthermore, it must be stated that, as the Board of Appeal found in the contested decision, the sides of the contested design are higher than those of the earlier designs and that, because of those differences, the bottom-to-top proportion of the contested design is more pronounced than the bottom-to-top proportion of the earlier designs.
49      In addition, it should be noted that the applicant acknowledges, at the very least, that the contested design and earlier design D 1 differ as regards the sides of the container, which are longer in the contested design.
50      If the base of the contested design is smaller and the sides of the container are longer, the bottom-to-top proportion is necessarily different from that of the earlier designs, with earlier design D 1 being identical to earlier design D 2.
51      Those findings are not called into question, first, by the applicant’s argument that the boxes would be stacked on shelves or in freezers and filled with non-transparent foodstuffs, which would make the base and the angles of the sides invisible.
52      In that regard, according to the case-law, even if the user sees certain products from only a limited perspective when using them, he or she will be aware of all the other perspectives at the time of use (judgment of 21 May 2015, Senz Technologies v OHIM – Impliva (Umbrellas), T‑22/13 and T‑23/13, EU:T:2015:310, paragraph 97 (not published)). For the assessment of the perception by the informed user of the appearance of the designs at issue, decisive weight must not be attached to the perspective during use of the goods into which the designs at issue are intended to be incorporated, inasmuch as the informed user also bases his or her decision to purchase and use the goods concerned on the design of those goods (see, to that effect, judgment of 24 September 2019, Piaggio & C. v EUIPO – Zhejiang Zhongneng Industry Group (Mopeds), T‑219/18, EU:T:2019:681, paragraph 57).
53      Furthermore, the protection conferred by the contested design relates to its appearance in that it is intended to be incorporated into packaging for foodstuffs having certain components with specific characteristics. The foodstuffs inside the container must not, therefore, be taken into consideration for the purpose of assessing the ‘overall impression’ referred to in Article 6(1) of Regulation No 6/2002 (see, to that effect, judgment of 12 March 2020, Gamma-A v EUIPO – Zivju pārstrādes uzņēmumu serviss (Packaging for foodstuffs), T‑352/19, not published, EU:T:2020:94, paragraph 33).
54      Accordingly, in the present case, for the assessment of the individual character of the contested design, decisive weight must not be attached to the fact that the informed user may see the boxes, principally, from the top or when they are filled with foodstuffs. The fact that the boxes are filled with foodstuffs must not be taken into consideration for the purposes of that assessment.
55      It follows that, even if the boxes are stacked and filled with foodstuffs, the informed user will be able to perceive their shape clearly, including their different lengths, widths and heights which give them a different bottom-to-top proportion.
56      Secondly, the applicant submits that the difference in the height or depth of the boxes cannot be taken into account in the assessment of the overall impression produced by the designs at issue, on the ground that those features should be regarded as being solely dictated by the technical function, within the meaning of Article 8(1) of Regulation No 6/2002. Increasing the height or depth of the tub increases its volume while retaining the other parameters, including its lid, which allows for a more efficient manufacturing process.
57      In that regard, it must be held, as the Board of Appeal observed in paragraph 52 of the contested decision, that the applicant has not explained, to the requisite legal standard, that the height or depth of the tub represented in the contested design was a feature dictated solely by the technical function of the product within the meaning of Article 8(1) of Regulation No 6/2002. Indeed, the applicant acknowledges that that feature is determined not by the technical function of the product but by the desire to allow for a more efficient manufacturing process.
58      Thirdly, as regards the applicant’s other arguments relating to the actual dimensions of the products to which the designs at issue are intended to be applied, it should be borne in mind that, according to the case-law, since the protection sought relates to designs, irrespective of the actual dimensions of the products to which those designs are intended to be applied, claims related to such dimensions are irrelevant in the context of the comparison of the overall impressions produced by the designs at issue (see, to that effect, judgment of 13 November 2012, Antrax It v OHIM – THC (Radiators for heating), T‑83/11 and T‑84/11, EU:T:2012:592, paragraph 67). In the present case, the Board of Appeal rightly took into account the bottom-to-top proportions of the designs at issue, in particular in paragraph 51 of the contested decision, and not the actual dimensions of the products to which they are intended to be applied.
59      Furthermore, as regards the applicant’s argument that the Board of Appeal attached more weight to the differences between the designs at issue merely because of the larger size of the contested design, it should be noted that, in order to assess the individual character of the contested design, the Board of Appeal did not rely on the difference in size between that design and the earlier designs, but, in accordance with the criteria laid down in the case-law referred to in paragraph 37 above, assessed whether the contested design produced an overall impression of difference or lack of ‘déjà vu’, from the point of view of an informed user, in relation to the earlier designs.
60      In those circumstances, the applicant’s arguments do not serve to call into question the Board of Appeal’s assessment relating to the differences between the designs at issue, as regards the angles of inclination of their walls, the width of their bases, the height and the bottom-to-top proportion of the designs.
61      In the second place, it is necessary to examine the applicant’s argument that the Board of Appeal downplayed the significance of the identical features of the designs at issue in the assessment of the overall impressions produced by those designs.
62      In that regard, it should be noted that, contrary to what the applicant claims, the Board of Appeal took into account the identical features of the designs at issue and analysed them in paragraphs 53 to 55 of the contested decision. However, it correctly found that, notwithstanding those identical features, the differences between the designs at issue justified the conclusion that they produced a different overall impression.
63      It should be borne in mind that, as noted in paragraph 42 above, the informed user pays only limited attention to elements that are totally banal and common to all examples of the type of product in question and will focus on features that are arbitrary or different from the norm and on the most visible and important elements.
64      In the present case, the Board of Appeal was therefore entitled to find that the informed user would pay little attention to elements that were totally banal and common to all examples of the type of product in question, namely the fact that the designs at issue consisted of a two-piece container (a tub and a lid), with a flat lid.
65      In those circumstances, the Board of Appeal correctly concluded that the other identical features of the designs at issue, referred to in paragraph 34 above, namely the fact that they contained a transparent lid with the same oval shape with a rim, rounded edges and engraved elements, and a tub with round edges, oval walls and elevated border lines, were not sufficient to outweigh the existing differences between those designs, linked to the angles of inclination of the walls, the width of the base, the height and the bottom-to-top proportion of the designs at issue, in so far as it found, in paragraph 53 of the contested decision, that those differences were prominent and altered the overall appearance of the container.
66      Consequently, the applicant’s argument that the Board of Appeal failed to attach sufficient weight to the identical features of the designs at issue cannot succeed.
67      The same is true of the applicant’s argument that the Board of Appeal failed to properly identify and assess all the common features between the designs at issue, namely their identical oval shape and transparent plastic material, all the features of the lids, the engraved elements in the upper part of the containers and their base.
68      In that regard, it is apparent from paragraphs 54 to 56 of the contested decision that the Board of Appeal duly identified the majority of those features, namely all the features of the lids of the designs at issue, the transparent plastic material and the engraved elements. Furthermore, it found that those features were not sufficient to alter the different overall impressions produced by the designs at issue.
69      In any event, it follows from the case-law referred to in paragraph 38 above that 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.
70      In the third place, it is necessary to examine the applicant’s argument that the Board of Appeal failed to take into account certain other relevant factors which are important for the global assessment of the designs at issue.
71      First, the applicant submits that the designer enjoys a high degree of freedom in developing the common features, described in paragraph 67 above, of the designs at issue. The presence of those common features thus shows that the designer of the contested design did not intend to depart from the overall impression produced by the earlier designs.
72      In that regard, it should be borne in mind that, as stated in paragraph 22 above, the Board of Appeal found, in paragraph 41 of the contested decision, that the designer had a high degree of freedom when developing boxes with lids or packaging for foodstuffs, in so far as he or she had infinite possibilities for altering the shape of the packaging, material, decoration and colouring.
73      Nonetheless, it cannot be inferred from that high degree of freedom enjoyed by the designer that, in the present case, the contested design would not necessarily produce an overall impression of difference or lack of ‘déjà vu’, from the point of view of an informed user, in relation to the earlier designs, taking account of their common features. As confirmed by the case-law, the designer’s degree of freedom is, in that context, a factor which makes it possible to moderate the assessment of the individual character of the contested design, rather than an independent factor which determines how different two designs have to be for one of them to be able to rely on individual character. In other words, the factor relating to the designer’s degree of freedom may reinforce or, a contrario, moderate the conclusion as regards the overall impression produced by each design at issue (see judgment of 10 November 2021, Eternit v EUIPO – Eternit Österreich (Building panels), T‑193/20, EU:T:2021:782, paragraph 59 and the case-law cited).
74      In those circumstances, the applicant’s argument relating to the taking into account of the designer’s high degree of freedom for the purpose of the global assessment of the designs at issue cannot, as such, call into question the Board of Appeal’s finding, referred to in paragraph 62 above, that, notwithstanding their identical features, the differences between the designs at issue justify the conclusion that they produce a different overall impression.
75      Secondly, the applicant submits that the informed user will pay more attention to the common features of the designs at issue and will attach only minor importance to their differences.
76      According to the case-law, there is nothing to support the position that an informed user confronted with the designs at issue, which in the present case, have sufficiently marked differences, will no longer be able to perceive those differences solely because certain characteristic features of those designs are the same for both (see, to that effect, judgment of 21 May 2015, Umbrellas, T‑22/13 and T‑23/13, EU:T:2015:310, paragraph 95 (not published)).
77      Furthermore, as has already been pointed out in paragraph 42 above, the informed user pays only limited attention to elements that are totally banal and common to all examples of the type of product in question and will focus on features that are arbitrary or different from the norm and on the most visible and most important elements.
78      Consequently, the Board of Appeal was right to find that the differences between the designs at issue, in particular the angles of inclination of the walls, the width of the base and sides of the container and the bottom-to-top proportion, were prominent and altered the overall appearance of the container in a way that would be perceived by the informed user, considering also his or her relatively high degree of attention when he or she uses the products.
79      In the fourth place, as regards the applicant’s arguments relating to earlier design D 2, it should be observed that it is apparent from paragraph 48 of the contested decision that the applicant itself acknowledged that earlier designs D 1 and D 2 were identical. Accordingly, all the findings made above apply as regards the assessment of the individual character of the contested design both in relation to earlier design D 1 and in relation to design D 2.
80      Furthermore, it is necessary to reject the applicant’s argument that the Board of Appeal should have taken account of the fact that some of the ice cream boxes corresponding to earlier design D 2 had a larger volume and were therefore larger in size. As stated in paragraph 58 above, since the protection sought relates to designs, irrespective of the actual dimensions of the products to which those designs are intended to be applied, claims related to such dimensions are irrelevant in the context of the comparison of the overall impressions produced by the designs at issue.
81      In those circumstances, the applicant’s claims that the Board of Appeal erred in its assessment of the individual character of the contested design and thus infringed Article 6(1) of Regulation No 6/2002 must be rejected.
82      The first plea must therefore be rejected as unfounded.
The second plea in law, alleging infringement of Article 5(1)(b) of Regulation No 6/2002
83      The applicant submits that the contested design is also not new within the meaning of Article 5(1)(b) of Regulation No 6/2002, since the earlier designs are identical to the contested design or differ only in immaterial aspects. Given that the Board of Appeal declared the contested design to be new on the basis of the same analysis as that carried out in relation to the assessment of individual character, that conclusion is incorrect and unlawful for the same reasons as those set out in the first plea.
84      EUIPO and the intervener dispute the applicant’s arguments.
85      In paragraph 59 of the contested decision, the Board of Appeal held that, since the contested design had individual character, it had, a fortiori, to be declared novel within the meaning of Article 5 of Regulation No 6/2002.
86      In that regard, it should be noted that, according to Article 5(1)(b) of Regulation No 6/2002, a registered design is to be considered to be new if no identical design has been made available to the public before the date of filing of the application for registration of the design for which protection is claimed.
87      The requirements of Articles 4 to 9 of Regulation No 6/2002 in its earlier version are cumulative in nature, which means that failure to comply with one of them suffices to invalidate the design at issue (see, to that effect, judgment of 10 June 2020, Vehicle couplings, T‑100/19, EU:T:2020:255, paragraph 54).
88      The requirements of novelty and individual character overlap to some extent (see judgment of 22 November 2018, Buck-Chemie v EUIPO – Henkel (Cleansing block for toilets), T‑296/17, not published, EU:T:2018:823, paragraph 30 and the case-law cited) while being based on different assessments (judgment of 4 February 2014, Sachi Premium-Outdoor Furniture v OHIM – Gandia Blasco (Armchair), T‑357/12, not published, EU:T:2014:55, paragraph 29).
89      The condition of individual character, referred to in Article 6 of Regulation No 6/2002, is more demanding than 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 (see, to that effect judgment of 6 June 2013, Kastenholz v OHIM – Qwatchme (Watch dials), T‑68/11, EU:T:2013:298, paragraph 38).
90      Accordingly, it may be inferred from the fact that a design has individual character that it is, a fortiori, novel (judgment of 27 April 2022, Group Nivelles v EUIPO – Easy Sanitary Solutions (Shower drainage channel), T‑327/20, EU:T:2022:263, paragraph 171).
91      Therefore, where a design is found to have individual character, 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 (judgment of 27 April 2022, Shower drainage channel, T‑327/20, EU:T:2022:263, paragraph 173).
92      In the light of the considerations set out in paragraphs 87 to 91 above, the Court finds that the Board of Appeal did not err in law 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.
93      The second plea must therefore be rejected as unfounded.
94      In the light of all the foregoing considerations, the action must be dismissed in its entirety.
Costs
95      Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
96      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 latter. By contrast, since EUIPO applied for the applicant to be ordered to pay the costs only in the event that a hearing is convened, EUIPO must, as such a hearing has not been organised, bear its own costs.
On those grounds,
THE GENERAL COURT (Ninth Chamber),
hereby:
1.      Dismisses the action;
2.      Orders Froneri Bulgaria EOOD to bear its own costs and to pay those incurred by Daesef AD;
3.      Orders the European Union Intellectual Property Office (EUIPO) to bear its own costs.
Kingston
Marcoulli
Zilgalvis
Delivered in open court in Luxembourg on 14 January 2026.
V. Di Bucci
S. Papasavvas
Registrar
President
*      Language of the case: English.