JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
29 October 2025 (*)
( EU design – Invalidity proceedings – EU design representing a part of a warning light – Ground for invalidity – Non-compliance with requirements for protection – Article 25(1)(b) of Regulation (EC) No 6/2002, in the version prior to Regulation (EU) 2024/2822 – No individual character – Article 6 of Regulation No 6/2002 – Proof of disclosure of the earlier design – Article 7(1) of Regulation No 6/2002 – Evidence submitted for the first time before the Board of Appeal – Indication and reproduction of the earlier designs – Discretion of the Board of Appeal – Article 63(2) of Regulation No 6/2002 – Obligation to state reasons – Article 62 of Regulation No 6/2002, in its earlier version )
In Case T‑550/24,
Ningbo Vasa Intelligent Technology Co. Ltd, established in Ningbo (China), represented by J.C. Erdozain López, 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
Electronic Controls Co., established in Boise, Idaho (United States), represented by G. Desrousseaux, lawyer,
THE GENERAL COURT (Seventh Chamber),
composed, at the time of the deliberations, of K. Kowalik-Bańczyk, President, I. Dimitrakopoulos (Rapporteur) and B. Ricziová, 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, Ningbo Vasa Intelligent Technology Co. Ltd, seeks the annulment of the decision of the Third Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 14 August 2024 (Case R 2347/2023-3) (‘the contested decision’).
Background to the dispute
2        On 12 January 2023, the applicant filed with EUIPO an application for a declaration of invalidity of the registered EU design No 8 005 813-0002, owned by the intervener, Electronic Controls Co., following an application filed on 15 June 2020, which is represented in the following views:
3        The products in which the design, in respect of which a declaration of invalidity was sought, is intended to be incorporated were in Class 10.6 of the Locarno Agreement of 8 October 1968 Establishing an International Classification for Industrial Designs, as amended, corresponding to the following description: ‘Warning lights (part of -)’.
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), read in conjunction with Article 4 of that regulation, in the version prior to the entry into force of Regulation (EU) 2024/2822 of the European Parliament and of the Council of 23 October 2024 (OJ L, 2024/2822).
5        The application for a declaration of invalidity was based on the argument that the contested design lacked individual character within the meaning of Article 6 of Regulation No 6/2002 in relation to the earlier designs. In support of its line of argument, the applicant relied, inter alia, on the following earlier designs:
–        an extract from the DESIGNview database concerning EU design registration No 6 964 193-0001 for ‘alarm lights’, published on 14 October 2019 in the European Union Designs Bulletin (‘the earlier design D1’):
–        a screenshot of the website ‘YouTube.com’, dated 27 September 2016, showing a screenshot of a video featuring a light called ‘mpower Fascia’ (‘the earlier design D2’):
6        On 17 November 2023, the Invalidity Division rejected the application for a declaration of invalidity, taking the view that the earlier designs relied on by the applicant produced on the informed user a different overall impression from that produced by the contested design, which could not therefore lack individual character.
7        On 30 November 2023, the applicant filed a notice of appeal with EUIPO against the decision of the Invalidity Division.
8        In support of its arguments in the appeal before EUIPO, the applicant relied on additional evidence, submitted in Annexes D3 to D6, consisting, inter alia, of earlier designs and of images which had not been submitted during the proceedings before the Invalidity Division.
9        By the contested decision, the Board of Appeal dismissed the appeal on the ground that the contested design had individual character within the meaning of Article 6 of Regulation No 6/2002, indeed producing a different overall impression, compared with the earlier designs D1 and D2, on the informed user in the warning lights sector.
Forms of order sought
10      The applicant claims that the Court should:
–        annul the contested decision;
–        order EUIPO and the intervener to pay the costs.
11      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs in the event that a hearing is convened.
12      The intervener contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
13      The applicant relies on three pleas in law, alleging, in essence, first, infringement of Article 62 and Article 63(2) of Regulation No 6/2002, in its earlier version, second, infringement of Article 7(1) of that regulation and, third, infringement of Article 6 of that regulation.
The first plea in law, alleging infringement of Article 62 and Article 63(2) of Regulation No 6/2002 in its earlier version
14      The applicant claims that the Board of Appeal erred in refusing to admit Annexes D4 and D6, submitted for the first time before it, and that that rejection constitutes an infringement of Article 63(2) of Regulation No 6/2002. Contrary to the Board of Appeal’s finding, those documents do not constitute a new basis for the application for a declaration of invalidity, but rather are additional documents produced on the basis of Article 28(1)(b) of Commission Regulation (EC) No 2245/2002 of 21 October 2002 implementing Regulation No 6/2002 (OJ 2002 L 341, p. 28). They were submitted in the context of the appeal concerning the same factual background as that at issue in that application. In addition, the applicant submits that the Board of Appeal did not properly state the reason why those annexes raised a new basis for that application and therefore also infringed Article 62 of Regulation No 6/2002 in its earlier version.
15      In paragraphs 34 to 38 of the contested decision, the Board of Appeal found that it did not have to take account of Annexes D4 and D6, and therefore proceeded to assess the individual character of the contested design on the basis of the designs relied on in the application for a declaration of invalidity, that is, solely on the basis of the earlier designs D1 and D2. In that regard, it found that those annexes showed designs made available before the date of filing of the contested design which were additional to those earlier designs. It observed that Article 63(2) of Regulation No 6/2002 did not make it possible to broaden the scope of the proceedings by allowing the applicant for a declaration of invalidity to rely on other earlier designs in support of its application during the proceedings.
16      EUIPO and the intervener dispute the applicant’s arguments.
17      It is appropriate to begin by examining the applicant’s complaint alleging infringement of the obligation to state reasons.
18      Under Article 63(2) of Regulation No 6/2002, EUIPO may disregard facts or evidence which are not submitted in due time by the parties concerned.
19      It follows from the wording of Article 63(2) of Regulation No 6/2002 that, as a general rule and unless otherwise specified, the submission of facts and evidence by the parties remains possible after the expiry of the time limits to which such submission is subject under the provisions of that regulation and that EUIPO is in no way prohibited from taking account of facts and evidence which are submitted or produced out of time (see, to that effect, judgment of 5 July 2017, Gamet v EUIPO – ‘Metal-Bud II’ Robert Gubała (Door handle), T‑306/16, not published, EU:T:2017:466, paragraph 15 and the case-law cited).
20      In addition, it is apparent from Article 28(1)(b)(i) and (vi) of Regulation No 2245/2002 that an application for a declaration of invalidity must contain a statement of the grounds on which the application for a declaration of invalidity is based and an indication of the facts, evidence and arguments submitted in support of that application. Article 28(1)(b)(v) provides that, where the application for a declaration of invalidity is based on the lack of novelty or individual character of the registered EU design, it must contain the indication and the reproduction of the earlier designs that could form an obstacle to the novelty or individual character of the registered EU design, as well as documents proving the existence of those earlier designs.
21      Furthermore, in accordance with Article 63(1) of Regulation No 6/2002, in invalidity proceedings, EUIPO is to be restricted in its examination to the facts, evidence and arguments provided by the parties and the relief sought. It is for the applicant to make sure that all the earlier designs relied on are clearly identified and reproduced, given that invalidity proceedings come under inter partes proceedings. Therefore, during the examination of the application for a declaration of invalidity, EUIPO is required to take into consideration only the designs which are expressly relied on by the applicant in the application for a declaration of invalidity, and not in a document submitted subsequently (see judgment of 12 October 2022, L. Oliva Torras v EUIPO – Mecánica del Frío (Vehicle couplings), T‑652/21, not published, EU:T:2022:634, paragraph 63 and the case-law cited).
22      It has been stated that, as is apparent from Article 28(1)(b)(v) of Regulation No 2245/2002, the application for a declaration of invalidity defines the subject matter of the dispute, which is apparent, first, from the contested design and, second, from the earlier designs relied on. Therefore, after the application for a declaration of invalidity has been filed, it is no longer possible to introduce into the proceedings other earlier designs that could form an obstacle to the novelty or individual character of the contested design (see judgment of 12 October 2022, Vehicle couplings, T‑652/21, not published, EU:T:2022:634, paragraph 64 and the case-law cited).
23      Consequently, having regard to Article 28(1)(b)(v) of Regulation No 2245/2002, in invalidity proceedings in respect of an EU design, EUIPO is to examine only the earlier designs identified in the application for a declaration of invalidity, and not other designs subsequently relied on as earlier designs (see judgment of 12 October 2022, Vehicle couplings, T‑652/21, not published, EU:T:2022:634, paragraph 65 and the case-law cited).
24      The discretion conferred on EUIPO by Article 63(2) of Regulation No 6/2002 to take into account ‘facts or evidence which are not submitted in due time by the parties concerned’ can apply only to the ‘facts [and] evidence’ referred to in Article 28(1)(b)(vi) of Regulation No 2245/2002, and not to ‘the indication and the reproduction of the prior designs’ required by Article 28(1)(b)(v) of that regulation. In particular, Article 63(2) of Regulation No 6/2002 is not applicable to the question of the identification of the earlier design (judgment of 27 April 2022, Group Nivelles v EUIPO – Easy Sanitary Solutions (Shower drainage channel), T‑327/20, EU:T:2022:263, paragraph 59).
25      Thus, although it is permissible to take into account additional evidence, such as a more precise representation or proof of publication of a design already relied on in the application for a declaration of invalidity, it does not, however, allow the subject matter of the dispute to be expanded by the production of completely new evidence, by allowing the applicant to base the application for a declaration of invalidity on other earlier designs, since such a process would alter the subject matter of the dispute, as well as prolong its duration (see, to that effect, judgment of 27 April 2022, Shower drainage channel, T‑327/20, EU:T:2022:263, paragraph 60).
26      In addition, it must be borne in mind that, under the first sentence of Article 62(1) of Regulation No 6/2002, decisions of EUIPO must state the reasons on which they are based. That obligation to state reasons has the same scope as that under Article 296 TFEU, pursuant to which the reasoning of the author of the act must be shown clearly and unequivocally, and its purpose is twofold: first, to enable the persons concerned to ascertain the reasons for the measure taken in order to defend their rights and, second, to enable the EU Courts to exercise their power to review the legality of the decision. However, the Boards of Appeal cannot be required to provide an account that follows exhaustively and one by one all the lines of reasoning put forward by the parties before them. The reasoning may therefore be implicit, on condition that it enables the persons concerned to know the reasons for the Board of Appeal’s decision and provides the competent court with sufficient material for it to exercise its power of review (see judgment of 13 June 2017, Ball Beverage Packaging Europe v EUIPO – Crown Hellas Can (Cans), T‑9/15, EU:T:2017:386, paragraph 26 and the case-law cited).
27      Furthermore, the obligation to state reasons is an essential procedural requirement, as distinct from the question of whether the reasons given are correct, which goes to the substantive legality of the contested measure. The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, those errors will vitiate the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though the decision sets out reasons which are incorrect. It follows that objections and arguments intended to establish that a measure is not well founded are irrelevant in the context of a plea in law alleging an inadequate statement of reasons or a lack of such a statement (see judgment of 14 July 2021, Upper Echelon Products v EUIPO (Everlasting Comfort), T‑562/20, not published, EU:T:2021:464, paragraph 66 and the case-law cited).
28      In the present case, as is apparent from paragraph 15 above, the Board of Appeal explained that Annexes D4 and D6 constituted a new basis for the application for a declaration of invalidity, unduly broadening the scope of the invalidity proceedings. It also referred to the applicable provisions, namely Article 28(1)(b)(v) of Regulation No 2245/2002 and Article 63(2) of Regulation No 6/2002, and to their interpretation in the light of the guidance to be derived from the relevant case-law. Accordingly, it set out in a sufficiently clear and precise manner the reasons why it found that it could not take account of the designs which were relied on for the first time before it.
29      In that regard, it should be borne in mind that the fact that the applicant does not agree with the substantive analysis of the Board of Appeal in the contested decision does not constitute a failure to state reasons, in accordance with the case-law cited in paragraph 27 above (judgment of 14 July 2021, Everlasting Comfort, T‑562/20, not published, EU:T:2021:464, paragraph 67).
30      In the light of the foregoing considerations, the applicant’s complaint alleging infringement of the obligation to state reasons must be rejected as unfounded.
31      As regards the applicant’s complaint alleging infringement of Article 63(2) of Regulation No 6/2002, it is common ground that the designs reproduced in Annexes D4 and D6 were not relied on or represented in the application for a declaration of invalidity, but only, for the first time, in the context of the appeal before the Board of Appeal. The applicant does not put forward any specific argument to challenge the Board of Appeal’s finding that those designs were not identical to the earlier designs relied on initially in that application. It was therefore in no way ‘a more precise representation or proof of publication of a design already relied on in the application for a declaration of invalidity’, within the meaning of the case-law referred to in paragraph 25 above. Although the applicant claims that those annexes constitute merely additional documents concerning the same factual background as that in question in the application for a declaration of invalidity, it has failed to explain how those annexes support the application in question based on the earlier designs D1 and D2.
32      Consequently, the Board of Appeal was fully entitled to find, in paragraph 37 of the contested decision, that the additional earlier designs, relied on for the first time before the Board of Appeal, raised a new basis for the application for a declaration of invalidity, thereby unduly broadening the scope of the invalidity proceedings.
33      In the light of the foregoing, the Court finds, contrary to what the applicant claims, that the Board of Appeal did not infringe Article 63(2) of Regulation No 6/2002.
34      Accordingly, the first plea in law must be rejected as unfounded in its entirety.
The second plea in law, alleging infringement of Article 7(1) of Regulation No 6/2002
35      The applicant submits that the Board of Appeal incorrectly assessed Annex D5, in breach of Article 7(1) of Regulation No 6/2002. First, given that the annex in question had been admitted as new evidence by the Board of Appeal, it should have assessed that annex irrespective of whether it was associated with the earlier design D2. Second, the contested decision is contradictory, in that, in paragraph 33 of the contested decision, the Board of Appeal admitted that annex, finding that the content of that annex merely supplemented the information already contained in the documents submitted before the Invalidity Division regarding the disclosure of the earlier design D2, whereas, in paragraph 45 of that decision, the Board of Appeal refused to take that annex into account as evidence of that disclosure.
36      EUIPO and the intervener dispute the applicant’s arguments.
37      In paragraphs 43 to 45 of the contested decision, the Board of Appeal examined the question of the disclosure of the earlier design D2, in accordance with Article 7(1) of Regulation No 6/2002. It found that that disclosure had been confirmed on the basis of one of the four images submitted as Annex D2 before the Invalidity Division, which showed a screenshot of the website ‘YouTube.com’, dated 27 September 2016 (that is to say, before the date of priority of the contested design), and taken from a video showing a light called ‘mpower Fascia’. By contrast, it did not take into account the other images produced by the applicant before the Invalidity Division, endorsing that division’s finding that the images did not contain any information relating to their source of publication and their date. In that regard, it observed that, although the applicant had submitted additional images in Annex D5, it could not assume that those images concerned the earlier design D2, relied on before that division, since they were submitted on the basis of extracts from YouTube videos that are different to the video submitted at first instance. It therefore found that those images could not be taken into account in the comparison of the designs at issue.
38      It should be borne in mind that, under Article 7(1) of Regulation No 6/2002, a design is 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 on which the design for which protection is claimed has first been made available to the public, except where these events could not reasonably have become known in the normal course of business to specialist circles in the sector concerned operating within the European Union.
39      In the present case, as regards the applicant’s complaint alleging excessive limitation of its rights of defence in that the Board of Appeal did not take account of Annex D5, it should be noted that the applicant does not dispute, in a specific and sufficiently substantiated manner, the Board of Appeal’s findings that, first, given that the images in question did not contain any information relating to their source of publication and their date, those images could not constitute proof of disclosure of the earlier design D2 within the meaning of Article 7(1) of Regulation No 6/2002 and, second, the new images produced before the Board of Appeal cannot alter that finding, given that the applicant for a declaration of invalidity had produced extracts from YouTube videos that are different to the video submitted at first instance. The Board of Appeal could not therefore simply assume that the new images concerned the same earlier design that had been relied on before the Invalidity Division.
40      Furthermore, although the applicant claims in the application that the Board of Appeal should have assessed Annex D5 without taking into account its association with the earlier design, it should be borne in mind, in accordance with the findings in respect of the examination of the first plea, that the application for a declaration of invalidity was based on the earlier designs D1 and D2, with the result that the evidence submitted by the applicant in support of that application had to relate necessarily to the disclosure and the overall impression produced by at least one of those earlier designs.
41      In addition, as regards the applicant’s complaint alleging a contradiction in the contested decision, it must be observed that the Board of Appeal accepted that Annex D5, which was submitted for the first time during the appeal proceedings, was admissible, taking the view that that annex had, on the basis of a prima facie examination, supplemented the information already contained in the documents submitted concerning the disclosure of the earlier design D2 before the Invalidity Division. The Board of Appeal found, however, that the images contained in that annex could not be regarded as relating to the same design that had been relied on before the Invalidity Division and therefore did not take them into account for the purposes of its substantive assessment of that earlier design. The fact that the Board of Appeal formally accepts images as evidence in no way implies that they constitute relevant and conclusive evidence for the purposes of the examination of the merits of the appeal. Consequently, contrary to what the applicant claims, there is no contradiction between paragraphs 33 and 45 of the contested decision.
42      In light of the foregoing considerations, the second plea in law must be rejected in its entirety.
The third plea in law, alleging infringement of Article 6 of Regulation No 6/2002
43      In support of the present plea, the applicant puts forward two complaints alleging, in essence, that the Board of Appeal erred in its assessment of, first, the definition of the informed user and, second, the comparison of the overall impressions which the designs at issue produce on that user.
44      EUIPO and the intervener dispute the applicant’s complaints.
45      As a preliminary point, it should be borne in mind that Article 25(1)(b) of Regulation No 6/2002 in its earlier version provides that an EU design may be declared invalid only if it does not fulfil the requirements referred to in Articles 4 to 9 of that regulation. Under Article 4(1) of that regulation in its earlier version, a design is to be protected only to the extent that it is new and has individual character.
46      It follows from the wording of Article 6(1)(b) of Regulation No 6/2002 that individual character must be assessed in the light of the overall impression that it produces on the informed user. In the case of a registered EU design, 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 18 October 2018, Linak v EUIPO – ChangZhou Kaidi Electrical (Electrically operated lifting column), T‑367/17, not published, EU:T:2018:694, paragraph 17).
47      Furthermore, it is apparent from recital 14 of Regulation No 6/2002 that, when assessing whether a design has individual character, account should be taken of the nature of the product to which the design is applied or in which it is incorporated, and in particular the industrial sector to which it belongs and the degree of freedom of the designer in developing the design.
48      According to settled case-law, 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 his or her 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).
49      It is appropriate to examine the applicant’s arguments concerning the Board of Appeal’s assessment of the individual character of the contested design in the light of those principles.
The informed user
50      In paragraphs 49 to 52 of the contested decision, the Board of Appeal defined the informed user in question. According to the Board of Appeal, it was necessary to take into consideration any person who habitually purchased such items, put them to their intended use and had become informed on the subject. Accordingly, it found that that user had knowledge of the various designs available on the market for those products, possessed a certain degree of knowledge about their features and, as a result of his or her interest, paid a relatively high degree of attention when using the products. Given that that user would be able to compare such products by using images taken from catalogues and the internet, he or she would be capable of observing in detail the products in question.
51      The applicant submits that the Board of Appeal’s finding that the informed user is capable of observing in detail the products in question is contrary to the case-law according to which that user is not an expert. Accordingly, it is not necessary for that user to be able to observe in detail the minimal differences that may exist between the designs at issue. Therefore, according to the applicant, such a user may not necessarily perceive the small or minor differences between those designs, with the result that they will not produce a different overall impression on him or her.
52      EUIPO and the intervener dispute the applicant’s arguments.
53      It should be noted that the concept of the ‘informed user’ is not defined by Regulation No 6/2002. According to the case-law, the concept of ‘informed user’ must be understood as lying somewhere between that of the ‘average consumer’, applicable in trade mark matters, who need not have any specific knowledge and who, as a rule, makes no direct comparison between the trade marks at issue, and the ‘sectoral expert’, who has detailed technical expertise. Thus, the concept of the informed user may be understood as referring, not to a user displaying an average level of attention, but to a particularly observant one, either because of his or her personal experience or his or her extensive knowledge of the sector in question (judgment of 20 October 2011, PepsiCo v Grupo Promer Mon Graphic, C‑281/10 P, EU:C:2011:679, paragraph 53).
54      As regards the informed user’s level of attention, it should be noted that, although the informed user is not the well-informed and reasonably observant and circumspect average consumer who normally perceives a design as a whole and does not engage in an analysis of its various details, he or she is also not an expert or specialist capable of observing in detail the minimal differences that may exist between the designs at issue. Thus, the qualifier ‘informed’ suggests that, without being a designer or a technical expert, the user knows the various designs which exist in the sector concerned, possesses a certain degree of knowledge with regard to the features which those designs normally include, and, as a result of his or her interest in the products concerned, shows a relatively high degree of attention when he or she uses them (see, to that effect, judgment of 20 October 2011, PepsiCo v Grupo Promer Mon Graphic, C‑281/10 P, EU:C:2011:679, paragraph 59 and the case-law cited).
55      In the present case, it should be noted that the applicant disputes, in essence, the Board of Appeal’s assessment relating to the informed user’s level of attention and his or her ability to observe in detail the products in question.
56      In that regard, it should be recalled that the Board of Appeal’s finding in paragraph 51 of the contested decision that the informed user’s level of attention was relatively high is based on his or her finding that the user of warning lights for vehicles is anyone who purchases and uses them habitually and who browses catalogues, specialised stores, articles and warning light magazines. On the basis of that finding, the Board of Appeal was fully entitled to conclude, in paragraphs 51 and 52 of that decision, that such a user had the opportunity, in practice, to compare the products in question, possessed a certain degree of knowledge about their features and, consequently, was capable of observing them in detail.
57      However, the applicant does not put forward, in essence, any substantiated argument calling those findings into question. Its argument that the Board of Appeal erred in finding that the informed user was likely to observe even ‘minimal’ differences or insignificant details is based on a misreading of the contested decision, in so far as the Board of Appeal did not make such a finding (see paragraphs 50 and 56 above). Consequently, that argument cannot succeed.
58      In the light of the foregoing, the Court finds that the applicant’s complaint that the Board of Appeal erred in its assessment of the definition of the informed user and his or her level of attention must be rejected.
The designer’s degree of freedom
59      In paragraphs 53 to 60 of the contested decision, the Board of Appeal examined the designer’s degree of freedom in the case in question. It found, in that regard, that the designer’s freedom was not substantially limited. It observed that that freedom was rather broad in relation to the size, number, position, overall shape of the light emitters, and material used.
60      The applicant submits that, although EUIPO and the applicant agree that the designer’s degree of freedom is broad, EUIPO did not apply correctly the case-law relating to the designer’s degree of freedom. According to the applicant, EUIPO undervalued the existence of minor differences in the comparison of the designs at issue and their importance in the assessment of the overall impression produced by those designs.
61      EUIPO and the intervener dispute the applicant’s arguments.
62      In the present case, it should be noted that the applicant does not dispute the Board of Appeal’s finding that the designer’s degree of freedom in relation to the product concerned was relatively broad. Although the applicant claims that the Board of Appeal did not correctly take into account that degree of freedom when assessing the overall impression produced by the designs at issue, by undervaluing the existence of minor differences in the comparison of those designs and their importance in the overall impression produced, that argument relates in fact to the assessment of the overall impression produced by those designs and will therefore be examined in the context of the following complaint.
The comparison of the overall impressions produced by the designs at issue on the informed user
63      In paragraphs 61 to 80 of the contested decision, the Board of Appeal compared the overall impression produced by the contested design and that produced by each of the earlier designs.
64      As regards the comparison between the contested design and the earlier design D1, the Board of Appeal found that those designs were distinguished by differences in significant features, namely, first, the shape of the light emitters, which was oval in the contested design and circular in that earlier design, and, second, the division of the shape in the contested design into six individual compartments, explaining the presence of grooves. According to the Board of Appeal, those differences will not go unnoticed by the informed user because they concern clearly visible parts of those designs. Therefore, taking into account the rather broad degree of freedom afforded to the designer and the high level of attention of the informed user, the Board of Appeal found that those elements are sufficient to create a different overall impression.
65      As regards the comparison between the contested design and the earlier design D2, the Board of Appeal endorsed the Invalidity Division’s assessment that the representation of that earlier design did not make it possible to compare it with the contested design and therefore found that it could not be concluded with certainty that the contested design produced a similar overall impression to that produced by that earlier design.
66      The applicant disputes that assessment, claiming that the Board of Appeal made several errors of assessment. It submits that, failing any statutory or regulatory requirement and in the light of the designer’s broad degree of freedom and the relevant features to be compared, the differences between the designs at issue, namely the shape of the light emitter and the presence of grooves, should be regarded as minor, with the result that they do not produce a different overall impression for the informed user. According to the Board of Appeal, by carrying out an overall comparison of those designs, that user would not display a high level of attention and would observe those designs as a whole. That user would therefore be more aware of the similarities between the designs at issue and would find that they all have an elongated rectangular shape with rounded edges formed by two clearly differentiated zones, namely an opaque lower section and a translucent upper section, all of which include six light emitters arranged in a line inside the upper section. There is nothing else to divert the attention of the user in question from the general external appearance of the warning light and its six visible light emitters through the transparent cover, since the fact that those lights are designed to flash, leading that user to give greater importance to the general shape of the lights and to the number of light emitters when taking account of their placement on the vehicle in order to ensure their visibility from a distance. In addition, the applicant submits that the curve in one of the views of the contested design and the presence of grooves on the transparent casing are not relevant to the external appearance of the warning light, since they show only the functional possibilities of that warning light or are dictated by the technical function of the product, respectively.
67      EUIPO and the intervener dispute the applicant’s arguments.
68      In that regard, it should be recalled that, 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 4 July 2017, Murphy v EUIPO – Nike Innovate (Electronic wristband), T‑90/16, not published, EU:T:2017:464, paragraph 43 and the case-law cited).
69      The assessment as to whether a design has individual character must be conducted in relation to one or more earlier designs, taken individually from among all the designs which have been made available to the public previously, and not in relation to a combination of features taken in isolation and drawn from a number of earlier designs. 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 features disclosed in the contested design and must relate solely to the features protected, without taking account of the features, particularly technical features, excluded from the protection. The comparison must relate to the designs as registered, and the applicant for a declaration of invalidity cannot be required to produce a graphic representation of the design relied on, 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).
70      The overall impression produced on the informed user by a design must necessarily be determined in the light of the manner in which the product in question is normally used. In that context, account must be taken of the fact that the attention of the informed user is focused rather on the most visible and most important elements when putting the product to normal use (see judgment of 10 April 2024, M&T 1997 v EUIPO – VDS Czmyr Kowalik (Door and window handles), T‑654/22, EU:T:2024:223, paragraph 49 and the case-law cited).
71      Furthermore, according to the case-law, if the designer enjoys a high degree of freedom in developing a design, that reinforces the conclusion that the designs which do not have significant differences produce the same overall impression on an informed user and, accordingly, the contested design does not display individual character. Conversely, if the designer has a low degree of freedom, that reinforces the conclusion that the sufficiently marked differences between the designs produce a dissimilar overall impression on the informed user and, accordingly, the contested design displays individual character (see judgment of 10 April 2024, Door and window handles, T‑654/22, EU:T:2024:223, paragraph 51 and the case-law cited).
72      It is therefore necessary to determine, in the present case, whether the differences between the designs at issue are sufficiently marked to create dissimilar overall impressions.
73      In that regard, it should be borne in mind, first of all, as observed by EUIPO, that the scope of protection of the contested design is restricted to the features of the light emitters, given that the other features of that design, namely its base and casing, are not claimed.
74      In the present case, the relevant features of the contested design to be compared are, as the Board of Appeal stated in paragraph 72 of the contested decision, in the first place, the six light emitters placed in a line, each one in an individual compartment and, in the second place, the fact that each light emitter is oval in shape and separated from the others by a small space.
75      As regards the earlier design D1, it is common ground that, as the Board of Appeal stated in paragraph 73 of the contested decision, that design has two features which differ from the contested design. Those are, first, the six light emitters placed in a line in a single compartment and, second, the fact that each light emitter is circular, divided into four parts, and placed alongside the next light emitter.
76      In that context, it must be held that the first difference between the designs at issue lies in the shape of their light sources, which is oval in the contested design but circular in the earlier design D1. The second difference is that, unlike the earlier design where light sources are attached to each other, the shape of the contested design is divided into six individual compartments and the contested design has grooves. Those differences in their shape and positioning cannot be regarded as minor features, but must be regarded as being capable of influencing the overall impression of the product (see, to that effect and by analogy, judgment of 6 June 2019, Rietze v EUIPO – Volkswagen (VW Bus T 5 vehicle), T‑43/18, not published, EU:T:2019:376, paragraph 44).
77      It should also be noted that, contrary to what the applicant claims, the Board of Appeal analysed the earlier design D1 as a whole and not in detail, finding that the differences between the designs at issue concern clearly visible parts of those designs, stating that those differences in shape relate to arbitrary and, therefore, important features, and found that those elements are sufficient to create a different overall impression on the informed user.
78      In that regard, it should be noted that the case-law does not require the features to be weighted or the common features to be analysed in order to determine whether the contested design produces a different overall impression on the informed user from that produced by the earlier design. In circumstances where, as in the present case, the assessment of sufficiently marked differences between the designs at issue establishes, sufficiently clearly, that the overall impression which the contested design produces on the informed user is different from that produced by the earlier design, EUIPO cannot be required to weight each of the features or to analyse the common features of the designs at issue (see, to that effect, judgment of 6 June 2019, VW Bus T 5 vehicle, T‑43/18, not published, EU:T:2019:376, paragraph 43). In the present case, the differences between the designs at issue are more than minor and, therefore, even taking into account the broad degree of freedom of the designer, the designs at issue produce a different overall impression.
79      In addition, as regards the applicant’s argument that, in view of its technical function, the presence of grooves should not be taken into consideration in the Board of Appeal’s assessment, it should be borne in mind that the Board of Appeal stated, in paragraph 75 of the contested decision, that that element was not decisive when comparing the designs at issue, but contributed, in any event, to creating a different overall impression. In that regard, the Board of Appeal did not attach any importance to that factor in its assessment and, therefore, even if the applicant’s argument were well founded, it would not be capable of establishing that the Board of Appeal made an error of assessment in that connection.
80      Last, it should also be noted that the differences found in paragraphs 75 to 77 above between the designs at issue could be capable of significantly affecting the emission of light from the products concerned and, therefore, their overall impressions on the informed user when they are used normally, in so far as they affect the direction in which the light is emitted and how the light radiation is perceived (see, to that effect, judgment of 3 September 2025, LTV Leuchten & Lampen v EUIPO – XAL (Lights), T‑599/24, not published, EU:T:2025:828, paragraph 42).
81      In the light of the foregoing considerations, the differences identified between the contested design and the earlier design D1 were sufficient to create a different overall impression.
82      As regards the earlier design D2, the applicant has not established that the representation of that design allowed a comparison to be made, beyond the fact that it shows an elongated warning light with six light sources. That representation, which shows a colour photograph (namely a screenshot of the website ‘YouTube.com’) of a final product already in use, does not make it possible to determine whether the transparent part containing the light sources is divided into six compartments and to discern the appearance of the light sources.
83      In those circumstances, the Court holds that the applicant has not established that the Board of Appeal erred in finding that, having regard to the nature and shape of the representation of the earlier design D2, it could not carry out a more detailed comparison with the contested design and, therefore, it could not conclude with certainty that the contested design produced an overall impression similar to that produced by that earlier design.
84      In the light of all the foregoing considerations, the third plea in law must be rejected as unfounded and, therefore, the action must be dismissed in its entirety.
Costs
85      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.
86      Since the applicant has been unsuccessful, it must be ordered to pay the costs incurred by the intervener, in accordance with the form of order sought by the intervener. By contrast, since EUIPO has applied for the applicant to be ordered to pay the costs only in the event that a hearing is convened, EUIPO must, in the absence of a hearing, be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Ningbo Vasa Intelligent Technology Co. Ltd to bear its own costs and to pay those incurred by Electronic Controls Co.;
3.      Orders the European Union Intellectual Property Office (EUIPO) to bear its own costs.
Kowalik-Bańczyk
Dimitrakopoulos
Ricziová
Delivered in open court in Luxembourg on 29 October 2025.
V. Di Bucci
M. van der Woude
Registrar
President
*      Language of the case: English.