62016TJ0760
JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
17 May 2018 (
*1
)
(Community design — Invalidity proceedings — Registered Community design representing bicycle baskets — Ground for invalidity — Inadmissibility of the application for a declaration of invalidity — Article 52(3) and Article 86(5) of Regulation (EC) No 6/2002 — Disclosure of the earlier design — Individual character — Different overall impression — Article 6 and Article 25(1)(b) of Regulation No 6/2002)
In Case T‑760/16,
Basil BV, established in Silvolde (Netherlands), represented by N. Weber and J. von der Thüsen, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by S. Hanne and D. Walicka, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Artex SpA, established in San Zeno di Cassola (Italy), represented by J. Vogtmeier, lawyer,
ACTION brought against the decision of the Third Board of Appeal of EUIPO of 7 July 2016 (Case R 535/2015-3), relating to invalidity proceedings between Artex and Basil,
THE GENERAL COURT (Ninth Chamber),
composed of S. Gervasoni (Rapporteur), President, K. Kowalik-Bańczyk and C. Mac Eochaidh, Judges,
Registrar: J. Plingers, Administrator,
having regard to the application lodged at the Court Registry on 4 November 2016,
having regard to the response of EUIPO lodged at the Court Registry on 12 January 2017,
having regard to the response of the intervener lodged at the Court Registry on 16 January 2017,
further to the hearing on 7 December 2017,
gives the following
Judgment
Background to the dispute
1
On 13 February 2004, the applicant, Basil BV, filed an application for registration of a Community design with the European Union Intellectual Property Office (EUIPO), pursuant to Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1).
2
The design in respect of which registration was sought (‘the contested design’) is reproduced below:
3
The contested design was registered under No 142245-0001. The registration was published in Community Trade Marks Bulletin No 47/2004 of 15 June 2004. That registration has since been renewed until 13 February 2019.
4
The contested design is intended to apply to ‘bicycle baskets’ in Class 03-01 of the Locarno Agreement of 8 October 1968 establishing an international classification for industrial designs, as amended.
5
On 17 June 2013, the intervener, Artex SpA, filed with EUIPO an application for a declaration of invalidity of the contested design, pursuant to Article 52 of Regulation No 6/2002. The ground relied upon in support of the application for a declaration of invalidity was that set out in Article 25(1)(b) of Regulation No 6/2002.
6
In its application for a declaration of invalidity, the intervener argued, inter alia, that the contested design was devoid of individual character within the meaning of Article 6 of Regulation No 6/2002 and submitted, in support of its claims, a number of documents purporting to establish the disclosure to the public of an earlier design (‘the earlier design’), including the following:
–
one of its catalogues which featured an image of a bicycle basket together with the item number 34.54.50, the dimensions of the product in question and its description (‘Back mesh Speedy basket’) in four languages. The image and accompanying details are reproduced below:
–
several invoices from the period 2000 to 2002 relating to the sale of ‘Speedy’ bicycle baskets to various companies;
–
a catalogue from 2001 and three catalogues from 2002 from several Italian companies containing the image of a bicycle basket, as reproduced below:
–
an invoice and a delivery note dated 20 July 2000 from a Thai company, addressed to the intervener;
–
a picture of a trade fair stand in which a bicycle basket was on display, together with an invoice from the Cologne (Germany) trade fair of 2002.
7
By decision of 13 January 2015, the Invalidity Division found the application for the declaration of invalidity to be admissible and declared the contested design to be invalid due to its lack of individual character.
8
On 11 March 2015, the applicant filed a notice of appeal against the decision of the Invalidity Division.
9
By decision of 7 July 2016 (‘the contested decision’), the Third Board of Appeal of EUIPO dismissed the appeal. In essence, the Board of Appeal held, first, that the application made by the intervener for a declaration of invalidity was admissible, despite the applicant’s assertions to the contrary; secondly, that the earlier design had been disclosed before the date of filing of the application for registration of the contested design, namely 13 February 2004; and, thirdly, that the Invalidity Division had been right to find that the contested design was invalid for being devoid of individual character.
Procedure and forms of order sought
10
By way of a measure of organisation of procedure, the Court put some questions to the parties, who responded within the time allowed.
11
The applicant claims that the Court should:
–
annul the contested decision;
–
order EUIPO and, as the case may be, the other parties, to pay the costs.
12
EUIPO and the intervener contend that the Court should:
–
dismiss the application;
–
order the applicant to pay the costs.
Law
13
In support of its action, the applicant relies on three pleas in law: first, infringement of Article 52(3) of Regulation No 6/2002 relating to the inadmissibility, in certain circumstances, of applications for a declaration of invalidity; secondly, infringement of Article 7 of Regulation No 6/2002, relating to the disclosure of designs; and thirdly, infringement of Article 6 of Regulation No 6/2002, relating to the individual character of designs.
The first plea in law, alleging infringement of Article 52(3) of Regulation No 6/2002
14
The applicant submits, in essence, that EUIPO should have found the application made by the intervener for a declaration of invalidity to be inadmissible under Article 52(3) of Regulation No 6/2002 or, failing that, under Article 86(5) of that regulation.
15
In that regard, the applicant relies on a decision of a Board of Appeal, taken prior to the contested decision, which dismissed an application for a declaration of invalidity relating to the contested design. The applicant states that those previous invalidity proceedings were conducted by the undertaking which made the application in conjunction with the intervener.
16
EUIPO and the intervener dispute those arguments.
17
In that regard, it should be noted, in the first place, that Article 52(3) of Regulation No 6/2002 provides that an application for a declaration of invalidity brought before EUIPO shall not be admissible if an application relating to the same subject matter and cause of action, and involving the same parties, has been adjudicated on by a Community design court and has acquired the authority of a final decision.
18
However, the provisions of Article 52(3) of Regulation No 6/2002 are not applicable in the present case.
19
First, Article 80 of Regulation No 6/2002, entitled ‘Community design courts’, provides, in paragraph 1, that the Member States are to designate in their territories a number of national courts and tribunals of first and second instance (Community design courts) which are to perform the functions assigned to them by that regulation. It therefore follows from that article that a Community design court is necessarily a national court of a Member State.
20
Article 52(3) of Regulation No 6/2002 therefore does not apply when the matter has already been adjudicated on by EUIPO, but only when it has been adjudicated on by the national court of a Member State.
21
Secondly, the applicant has failed to show that the party that made the application for a declaration of invalidity in the present case in respect of the contested design is the same party as that which made the application for a declaration of invalidity in respect of the contested design in the previous case.
22
The fact that the two cases are closely linked and that there is close collaboration between the two parties each of whom made an application for a declaration of invalidity in one of the two cases, as can be seen, inter alia, from the fact that their representatives and arguments are the same, does not mean that the parties are the same.
23
The intervener stated, and it was not contested at the hearing, that the undertaking which made the previous application for a declaration of invalidity was only its customer, which is insufficient for the intervener and that other undertaking to constitute one and the same party.
24
Incidentally, the situation referred to in paragraph 22 above does not mean that the applications for declarations of invalidity in question were made improperly.
25
Finally, in relation to the argument that the Board of Appeal infringed the applicant’s right to be sufficiently heard with regard to the alleged improper conduct of the intervener, the applicant has produced no evidence to show that the Board of Appeal did not allow the applicant to submit its observations in that respect.
26
In addition, although the applicant, in reliance on Article 47 of the Charter of Fundamental Rights of the European Union and Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, claims that there was an infringement of the right to a fair trial, it must be noted that the Court has ruled out the possibility of relying on that right before the Boards of Appeal of EUIPO, since proceedings before the Boards of Appeal are administrative and not judicial in nature (judgments of 20 April 2005, Krüger v OHIM — Calpis (CALPICO), T‑273/02, EU:T:2005:134, paragraph 62, and of 12 December 2014, Comptoir d’Épicure v OHIM — A-Rosa Akademie (da rosa), T‑405/13, not published, EU:T:2014:1072, paragraph 71; see also, to that effect, judgment of 12 December 2002, Procter & Gamble v OHIM (Soap bar shape), T‑63/01, EU:T:2002:317, paragraph 23).
27
In the second place, Article 86(5) of Regulation No 6/2002, according to which no counterclaim for a declaration of invalidity of a registered Community design may be made if an application relating to the same subject matter and cause of action, and involving the same parties, has already been determined by EUIPO in a decision which has become final, does not govern proceedings before EUIPO and, in particular, its Boards of Appeal, but proceedings before Community design courts which, as already explained in paragraph 19 above, are national courts.
28
Although it is true that the purpose of Article 52(3) of Regulation No 6/2002 and Article 86(5) of Regulation No 6/2002 is to prevent potential conflicts between decisions of EUIPO and decisions of Community design courts over the invalidity of a design, it cannot be inferred from those articles that Regulation No 6/2002 establishes an equivalent way of preventing internal conflicts between decisions made by EUIPO.
29
In the third place, Article 52(3) of Regulation No 6/2002 cannot be applied by analogy to cases where EUIPO has already adjudicated on an application for a declaration of invalidity.
30
That is because it has not been established that there is an omission in that provision that is incompatible with a general principle of law which could be remedied by an application by analogy (see, to that effect, judgment of 12 December 1985, Krohn, 165/84, EU:C:1985:507, paragraphs 13 and 14).
31
It is true that Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1)), and more particularly Article 56(3) of that regulation (now Article 63 of Regulation 2017/1001), to which the applicant refers in its application (actually referred to as Article 60(3) of Regulation No 6/2002, although this was confirmed at the hearing to be a clerical error), provides, in the version amended by Regulation (EU) 2015/2424 of the European Parliament and of the Council of 16 December 2015 (OJ 2015 L 341, p. 21), that an application for a declaration of invalidity is to be inadmissible if an application relating to the same subject matter and cause of action, and involving the same parties, has been adjudicated on its merits, either by EUIPO or by an EU trade mark court, and the decision of EUIPO or that court on that application has acquired the authority of a final decision.
32
However, if, in EU trade mark matters, it appeared necessary to the legislature to adopt an express provision allowing an application for a declaration of invalidity to be dismissed, without being examined on the merits, on the basis of the authority of earlier decisions of EUIPO, then such an express provision would also be necessary in relation to design matters. It is therefore not possible to compensate for the absence of such a provision by applying, by analogy, Article 52(3) of Regulation No 6/2002 to decisions of EUIPO.
33
Moreover, an express textual provision would be all the more necessary in order for provisions intended to apply to judicial decisions that have ‘acquired the authority of a final decision’ to be applied by analogy to decisions of EUIPO, given that it is settled case-law that proceedings before EUIPO are administrative and not judicial in nature (judgment of 15 July 2015, TVR Automotive v OHIM — TVR Italia (TVR ITALIA), T‑398/13, EU:T:2015:503, paragraph 38; see also, to that effect, judgment of 12 December 2002, Soap bar shape, T‑63/01, EU:T:2002:317, paragraphs 22 and 23).
34
It must also be pointed out that, in Community design matters, the examination of the merits of the application for registration is limited, under Article 47(1) of Regulation No 6/2002, to checking that the application corresponds to the definition of a design under Article 3(a) of the regulation and that it is not contrary to public policy. All other aspects are governed by the formal requirements set out in Article 45 of Regulation No 6/2002. By contrast, Articles 7 and 8 of Regulation No 207/2009 (now Articles 7 and 8 of Regulation 2017/1001), provide for a thorough review of the validity of a mark prior to its registration, on the basis, with regard to Article 8 of Regulation No 207/2009, of the existence of opposition proceedings. Therefore, in view of the degree to which the validity of designs is reviewed prior to registration, invalidity proceedings, which allow for that review to take place after registration, necessarily play a different role in the system under Regulation No 6/2002 from that which they play in the system under Regulation No 207/2009 for which the level of review is different. That makes it all the more troublesome to apply Article 52(3) of Regulation No 6/2002 by analogy to decisions of EUIPO on the basis of Article 56(3) of Regulation No 207/2009.
35
In the light of the foregoing, the present plea must be rejected.
The second plea in law, alleging infringement of Article 7 of Regulation No 6/2002
36
By its second plea, the applicant claims that the Board of Appeal infringed Article 7 of Regulation No 6/2002 by accepting that the earlier design had been disclosed. The plea comprises various complaints: the first of those alleges that the translation of the evidence adduced by the intervener to prove disclosure of the earlier design to the public was submitted late to EUIPO; the second alleges that the evidence on the basis of which the Board of Appeal held that the earlier design had been disclosed prior to the contested decision was inconclusive; and the third alleges that the Board of Appeal made an error in identifying the relevant specialised circles.
The late submission of the translation of the evidence adduced by the intervener before EUIPO
37
Although the applicant claimed in its application that the evidence adduced by the intervener to prove the disclosure of the earlier design had been translated into the language of the invalidity proceedings only after expiry of the time limit laid down in Article 29(5) of Commission Regulation (EC) No 2245/2002 of 21 October 2002 implementing Regulation No 6/2002 (OJ 2002 L 341, p. 28), the record of the hearing shows that the applicant withdrew that complaint. There is therefore no longer a need to adjudicate on it.
Inconclusive nature of the evidence on the basis of which the Board of Appeal held that there was a disclosure of the earlier design to the public
38
The applicant submits, in essence, that the evidence on which the Board of Appeal based its decision did not establish that the earlier design had been disclosed before the filing of the application for registration of the contested design, that is to say, 13 February 2004. The applicant also submits that the intervener’s catalogue, the invoices, the picture of the trade fair stand and the other catalogues produced by the intervener do not allow an earlier disclosure to be established with certainty.
39
EUIPO and the intervener contend that the present complaint should be rejected.
40
According to Article 7 of Regulation No 6/2002, for the purpose of applying Articles 5 and 6, a design shall 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, except where these 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. Article 7 of Regulation No 6/2002 goes on to provide that the design shall not, however, 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.
41
Regulation No 2245/2002 is silent as to the evidence of disclosure of the earlier design that is to be provided by the applicant for a declaration of invalidity. More specifically, Article 28(1)(b)(v) of Regulation No 2245/2002 merely provides that, where the ground for the application for the declaration of invalidity is, inter alia, that the Community design for which protection is sought is devoid of individual character, the application shall contain the indication and the reproduction of the design belonging to the party applying for the declaration of invalidity that could form an obstacle to the individual character of the Community design for which protection is sought, as well as documents proving the previous disclosure of the earlier design. What is more, neither Regulation No 6/2002 nor Regulation No 2245/2002 specifies a mandatory format for the evidence that must be adduced by the applicant for the declaration of invalidity to prove the disclosure of its design prior to the date of filing of the application for registration of the design for which protection is sought. Thus, Article 28(1)(b)(v) and (vi) of Regulation No 2245/2002 merely requires the application for the declaration of invalidity to contain ‘documents proving the existence [of the earlier design]’ and ‘the facts, evidence and arguments submitted in support [of the grounds of the application]’. Similarly, Article 65(1) of Regulation No 6/2002 merely contains a non-exhaustive list of methods of taking evidence in proceedings before EUIPO. The applicant for the declaration of invalidity is therefore free to choose the evidence he considers useful to submit to EUIPO in support of his application for a declaration of invalidity (judgment of 14 July 2016, Thun 1794 v EUIPO — Adekor (Decorative graphical symbols), T‑420/15, not published, EU:T:2016:410, paragraph 26).
42
Furthermore, the disclosure of an earlier design cannot be proved by means of probabilities or presumptions, but must be demonstrated by solid and objective evidence of actual disclosure of the earlier design on the market. In addition, the evidence adduced by the applicant for the declaration of invalidity must be considered in its entirety. Although some of that evidence may be insufficient in itself to prove disclosure of an earlier design, when combined or read in conjunction with other documents or information, it may nevertheless contribute to establishing disclosure. Finally, in order to assess the evidential value of a document, it is necessary to verify the plausibility and the accuracy of the information which that document contains. It is necessary to take account of, inter alia, the origin of the document, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, the document appears to be sound and reliable (judgment of 14 July 2016, Decorative graphical symbols, T‑420/15, not published, EU:T:2016:410, paragraph 27).
43
In the present case, the Board of Appeal noted that the intervener had submitted a catalogue, the original of which had been produced. In that catalogue a bicycle basket bearing the name ‘Speedy’ was pictured with item number 34.54.50. The intervener also produced more than 100 invoices addressed to various companies established, inter alia, in Italy. Those invoices dated from the period 2000 to 2002, corresponded to the sale of more than 25000 bicycle baskets and contained both the item number 34.54.50 and the name ‘Speedy’.
44
The Board of Appeal stated that a bicycle basket matching that referred to in paragraph 43 above also appeared in four catalogues of other companies from 2001 and 2002 and appeared in the image of a company’s stand at a trade fair in Cologne in 2002.
45
On the basis of that evidence, considered as a whole, the Board of Appeal was fully entitled to conclude that the earlier design at issue in the present case had been the subject of a disclosure.
46
That conclusion cannot be called into question by the arguments put forward by the applicant.
47
In fact, the applicant simply expresses doubts and reservations, in particular as to the date and the distribution of the catalogue referred to in paragraph 43 above and the very existence of the catalogues referred to in paragraph 44 above, as to the connection between the item number appearing in the catalogue referred to in paragraph 43 above and the same number appearing on the invoices also referred to in paragraph 43 above and even as to whether the catalogues in question had been distributed or the goods pictured in them manufactured.
48
Such doubts are not sufficient to call into question the body of consistent evidence adduced by the intervener and relied on by the Board of Appeal in concluding that a disclosure occurred.
49
Furthermore, it should be reiterated, in relation to the applicant’s argument alleging a failure to call witnesses, that an applicant for a declaration of invalidity is free to choose the evidence he considers useful to submit to EUIPO in support of his application for a declaration of invalidity (see paragraph 41 above).
50
Similarly, it must be recalled, as regards the arguments alleging that one or other item of evidence admitted by the Board of Appeal was insufficient, that, when assessing the disclosure of a design, it is necessary to carry out an overall assessment, taking into account all factors relevant to the circumstances of the case (see paragraph 42 above).
51
It must also be borne in mind that the applicant’s allegation that, in the sector in question, it is customary to use the same item number for the preceding and the subsequent versions of a product has not been established.
52
Furthermore, EUIPO states convincingly that, while such an allegation cannot be ruled out in relation to an item name, it is unrealistic for the item number, because using the same item number for successive versions of a product would make it impossible to distinguish between those versions when tracking sales, for accounting purposes and in relation to warranties.
53
In addition, the applicant’s allegations concerning a potential manipulation of the documents produced by the intervener have not been established.
54
Lastly, as regards the applicant’s reference to a previous decision of one of the Boards of Appeal of EUIPO, inasmuch as the complaint in question does not relate to the first plea, which was rejected in paragraph 35 above, but to a reliance on the decision-making practice of the Boards of Appeal of EUIPO, it is clear from settled case-law that the decisions concerning registration of a sign as an EU trade mark which the Boards of Appeal of EUIPO are led to take under Regulation No 207/2009 are adopted in the exercise of circumscribed powers and are not a matter of discretion. Accordingly, the legality of those decisions must be assessed solely on the basis of that regulation and not on the basis of a previous decision-making practice. It has been held that, in the light of the principles of equal treatment and sound administration, EUIPO must, when examining an application for registration of an EU trade mark, take into account the decisions already taken in respect of similar applications and consider with especial care whether it should decide in the same way. However, the way in which the principles of equal treatment and sound administration are applied must be consistent with respect for legality. Consequently, a person who seeks registration of a sign as a trade mark cannot rely, to his own benefit, on any unlawful act committed in favour of another in order to obtain an identical decision. Moreover, for reasons of legal certainty and, indeed, of sound administration, the examination of any trade mark application must be stringent and comprehensive, in order to prevent trade marks being improperly registered. That examination must be undertaken in each individual case. The registration of a sign as a trade mark depends on specific criteria, which are applicable in the factual circumstances of the particular case and the purpose of which is to ascertain whether the sign at issue is caught by a ground for refusal (see judgment of 16 February 2017, Antrax It v EUIPO — Vasco Group (Thermosiphons for radiators), T‑828/14 and T‑829/14, EU:T:2017:87, paragraph 93 and the case-law cited).
55
The case-law referred to in paragraph 54 above, concerning the EU trade mark system, is applicable by analogy to the treatment of applications for a declaration of invalidity of designs (judgment of 16 February 2017, Thermosiphons for radiators, T‑828/14 and T‑829/14, EU:T:2017:87, paragraph 93).
56
In the present case, as is apparent from paragraphs 43 to 45 above, the Board of Appeal was right to conclude that the earlier design had been disclosed. Therefore, the applicant cannot profit from an earlier decision of EUIPO in order to invalidate that conclusion.
57
In any event, the present case differs from the case relied on by the applicant in a number of aspects. The intervener produced a much larger number of invoices than did the applicant for a declaration of invalidity in that other case. In addition, those invoices included the name of the earlier design and an item number, which were listed in the original catalogue in which that design appeared. Lastly, other catalogues from other companies were also submitted.
58
The Board of Appeal therefore rightly found, in paragraph 29 of the contested decision, that those aspects constituted a sufficient difference between the two cases as to enable the Board to reach different conclusions in each of them.
59
It follows from the foregoing that the present complaint must be rejected.
The error in identifying the relevant specialised circles
60
The applicant submits, in essence, that the Board of Appeal made an error in identifying the relevant specialised circles.
61
The applicant maintains, in its first argument, that the Board of Appeal was wrong to find that traders formed part of the specialised circles.
62
The applicant also submits a second argument, alleging that the Board of Appeal did not rule adequately on the question of whether an appreciable proportion of the specialised circles had had the opportunity to become aware of the contested design, which infringed its right to be heard.
63
EUIPO and the intervener contend that the complaint should be rejected in its entirety.
64
As regards the applicant’s first argument, the Court has already held that Article 11(2) of Regulation No 6/2002, which provides that a design shall be deemed to have been made available to the public within the European Union if it has been published, exhibited, used in trade or otherwise disclosed in such a way that, in the normal course of business, these events could reasonably have become known to the circles specialised in the sector concerned, operating within the European Union, must be interpreted as meaning that it could be considered that an unregistered design might reasonably have become known in the normal course of business to the circles specialised in the sector concerned, operating within the European Union, if images of the design had been distributed to traders operating in that sector (judgment of 13 February 2014, H. Gautzsch Großhandel, C‑479/12, EU:C:2014:75, paragraph 30). That interpretation may be applied by analogy to Article 7(1) of Regulation No 6/2002, the wording of which is similar to that of Article 11(2) of Regulation No 6/2002 and which also seeks to establish the factors relevant for determining whether or not there has been a disclosure that would afford protection to an unregistered design.
65
The first argument must therefore be rejected.
66
Regarding the second argument, it should be recalled that a design is deemed to have been made available once the party relying thereon has proven the events constituting disclosure. In order to refute that presumption, the party challenging the disclosure must establish to the requisite legal standard that the circumstances of the case could reasonably prevent those facts from becoming known in the normal course of business to the circles specialised in the sector concerned (judgment of 21 May 2015, Senz Technologies v OHIM — Impliva (Umbrellas), T‑22/13 and T‑23/13, EU:T:2015:310, paragraph 26).
67
In the present case, as stated in paragraph 45 above, the intervener proved to the requisite legal standard the disclosure of the earlier design. The applicant has failed to establish that the circumstances of the present case prevented the facts constituting disclosure from becoming known to the circles specialised in the sector concerned. Given that it falls to the applicant to establish that and that it has not shown that it did so before the Board of Appeal, the applicant cannot properly rely on the fact that the Board of Appeal did not rule on that point nor claim that the Board of Appeal infringed its right to be sufficiently heard.
68
For the sake of completeness, the argument alleging infringement of the right to be heard is not supported by sufficient detail for its merits to be assessed. It must, therefore, in any event be rejected.
69
Moreover, although the applicant, relying on Article 47 of the Charter of Fundamental Rights and Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, claims infringement of the right to a fair trial, that argument must be rejected in view of the considerations set out in paragraph 26 above.
70
It is therefore necessary to reject the second argument and the third complaint as a whole.
71
In the light of the foregoing, it must be concluded that the Board of Appeal correctly found that the earlier design had been made available to the public prior to the date of filing of the application for registration of the contested design, that is to say, 13 February 2004.
72
The present plea must therefore be dismissed in its entirety.
The third plea in law, alleging infringement of Article 6 of Regulation No 6/2002
73
The applicant submits that the Board of Appeal infringed Article 6 of Regulation No 6/2002 in finding that the contested design was devoid of individual character.
74
The applicant maintains that the elements which differ between the two designs at issue, namely two horizontal strips on the base of the basket and a rectangle on the rear side, will be perceived by the informed user and dominate the overall impression produced on that user by the contested design.
75
EUIPO and the intervener contend that the present plea should be rejected.
76
It follows from the wording of Article 6(1)(b) of Regulation No 6/2002 that individual character must, in the case of a registered Community design, be assessed in the light of the overall impression which it produces on the informed user. The overall impression produced on the informed user must be different from that produced by any design made available to the public before the date on which the application for registration was filed or, if a priority is claimed, the date of priority. Article 6(2) of Regulation No 6/2002 states that, in the assessment of individual character, the degree of freedom of the designer in developing the design is to be taken into consideration (judgment of 29 October 2015, Roca Sanitario v OHIM — Villeroy & Boch (Single control handle faucet), T‑334/14, not published, EU:T:2015:817, paragraph 15).
77
In accordance with the 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 marked to affect that overall impression, even though they may be more than insignificant details, but taking account of differences that are sufficiently marked to produce dissimilar overall impressions (judgment of 29 October 2015, Single control handle faucet, T‑334/14, not published, EU:T:2015:817, paragraph 16).
78
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 the design is applied 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, whether there is saturation of the state of the art, which could be capable of making the informed user more attentive to the differences in the designs compared, and also the manner in which the product at issue is used, in particular according to the manner in which it is normally handled when used (judgment of 29 October 2015, Single control handle faucet, T‑334/14, not published, EU:T:2015:817, paragraph 17).
79
Finally, in the assessment of the individual character of a design, account must also be taken of the point of view of an informed user. According to settled case-law, an informed user is a person who is particularly observant and who has some awareness of the previous state of the art, that is to say, the corpus of previous designs relating to the product in question that had been made available to the public on the date of filing of the contested design or, as appropriate, the date of priority claimed (see judgment of 29 October 2015, Single control handle faucet, T‑334/14, not published, EU:T:2015:817, paragraph 18 and the case-law cited).
80
In the present case, the informed user was correctly defined by the Board of Appeal, without this being disputed by the applicant, as being a person who is familiar with bicycle baskets and who, without being a designer or a technical expert, knows the various designs which exist in the sector concerned and possesses a certain degree of knowledge with regard to the features which those designs normally include (paragraph 32 of the contested decision).
81
In addition, the Board of Appeal correctly found, without this being disputed by the applicant, that the designer’s degree of freedom in the case of bicycle baskets was limited by technical specifications, as bicycle baskets must be fastened to the bicycle and be able to hold objects without them falling out while cycling. The designer could, however, choose between a wide variety of colours, materials (e.g. plastic, metal, rattan or fabric) and shapes (round, oval or square) of the basket (paragraph 33 of the contested decision).
82
The Board of Appeal then stated, without committing any error, that the baskets in question corresponded at least in several features (paragraph 35 of the contested decision), namely that:
–
both baskets were made from a fine wire mesh;
–
both bicycle baskets were rectangular;
–
the upper edges of both long sides sloped downwards towards the front;
–
the front side was half the height of the rear side;
–
there was an edge running around the entire basket at the height of the lower shorter side.
83
The Board of Appeal also found, correctly, that the designs at issue differed in that the contested design contained two elements, specifically two horizontal strips on the base and a rectangle on the shorter rear side, that were not present in the earlier design (paragraph 36 of the contested decision).
84
The Board of Appeal found that the two horizontal strips on the base of the contested design were recognised by the informed user as a means of reinforcing the basket. It also found that the rectangle on the shorter rear side of the contested design would be seen as a nameplate, that those elements as a whole barely influenced the overall impression of the bicycle basket and that the user would therefore recognise that both the designs at issue had the same shape, were made of the same material and had the same aesthetic properties. The Board concluded that both the designs at issue gave the same overall impression and that the slight differences were incapable of substantiating the individual character of the contested design (paragraph 37 of the contested decision).
85
In the light of all the considerations set out in the foregoing paragraphs, which must be approved, it must be held that the Board of Appeal was entitled to conclude, on the basis of the factors on which it relied, that the designs at issue produced the same overall impression on the informed user and that the contested design lacked individual character.
86
The applicant does not put forward in its application any argument capable of calling into question the conclusion set out in paragraph 85 above.
87
The present plea must therefore be rejected.
88
It should be added, as regards the arguments put forward during the proceedings before EUIPO, to which the applicant refers, in particular in paragraphs 61, 66 and 82 of its application, that, while the application may be supported and supplemented, in regard to specific points, by references to extracts from documents appended thereto, the annexes have a purely evidential and instrumental function. The annexes cannot therefore serve as a basis for developing a plea set out in summary form in the application by putting forward complaints or arguments which are not contained in that application (judgment of 30 January 2007, FranceTélécom v Commission, T‑340/03, EU:T:2007:22, paragraph 167). Those arguments must, therefore, be rejected as inadmissible.
89
It follows from all of the foregoing that the action must be dismissed.
Costs
90
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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by EUIPO and the intervener.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:
1.
Dismisses the action;
2.
Orders Basil BV to pay the costs.
Gervasoni
Kowalik-Bańczyk
Mac Eochaidh
Delivered in open court in Luxembourg on 17 May 2018.
[Signatures]
(
*1
)	Language of the case: German.