JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
15 October 2020 (*)
(Community design – Invalidity proceedings – Registered community design representing a support pillow – Earlier Community design – Ground for invalidity – No individual character – Informed user – Degree of freedom of the designer – No different overall impression – Article 6 and Article 25(1)(b) of Regulation (EC) No 6/2002 – Obligation to state reasons)
In Case T‑818/19,
Dvectis CZ s. r. o., established in Brno (Czech Republic), represented by J. Svojanovská, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by J. Ivanauskas and V. Ruzek, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
Yado s. r. o., established in Handlová (Slovakia),
ACTION brought against the decision of the Third Board of Appeal of EUIPO of 10 September 2019 (Case R 513/2018-3), relating to invalidity proceedings between Yado and Dvectis CZ,
THE GENERAL COURT (Fifth Chamber),
composed of D. Spielmann, President, U. Öberg (Rapporteur) and O. Spineanu-Matei, Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Court Registry on 27 November 2019,
having regard to the response lodged at the Court Registry on 13 February 2020,
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
Background to the dispute
1        On 15 June 2016, the applicant, Dvectis CZ s. r. o., 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 community design for which registration has been applied and which is contested in this case is represented in the following image:
3        The products in which the contested design is intended to be incorporated are in Class 24-04 of the Locarno Agreement Establishing an International Classification for Industrial Designs of 8 October 1968, as amended, and correspond to the following description: ‘Back braces, support pillows; cushions for pelvis support; orthopaedic supports’.
4        The contested design was registered on 15 June 2016 as a Community design under No 3222504-0001 and published in Community Designs Bulletin No 113/2016 of 20 June 2016.
5        On 3 October 2016, Yado s. r. o. introduced, pursuant to Article 52 of Regulation No 6/2002, an application for a declaration of invalidity of the contested design.
6        The ground relied on in support of the application for a declaration of invalidity was that set out in Article 25(1)(b) of Regulation No 6/2002, read in conjunction with Articles 4 to 6 of that regulation.
7        The applicant for a declaration of invalidity asserted in its application for a declaration of invalidity, inter alia, that the contested design lacked novelty and individual character in comparison with the Community design registered on 17 December 2013 under No 2371591-0003, identifying the ‘support pillows’ included in Class 24-04 and represented in the following images:
8        On 5 February 2018, the Invalidity Division declared the contested design to be invalid on the ground that, even if it was new, within the meaning of Article 5(1)(b) of Regulation No 6/2002, it lacked individual character within the meaning of Article 6(1)(b) of that regulation.
9        On 21 March 2018, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 55 to 60 of Regulation No 6/2002, against the Invalidity Division’s decision.
10      By decision of 10 September 2019 (‘the contested decision’), the Third Board of Appeal of EUIPO dismissed the appeal. Having confirmed the Invalidity Division’s finding – not, incidentally, disputed by the parties – that the earlier design had been divulged before the date of registration of the contested design, the Board of Appeal stated that the products relating to the designs at issue contained the same product indication, namely ‘support pillows’, that the informed user had a certain knowledge of those products and of their different characteristics and that the freedom of the designer was not significantly limited. It added that the contested design reproduced the two essential characteristics of the appearance of the earlier design, namely the essentially rectangular shape and the lines representing stitching in the centre. It concluded that the overall impression that it produced on the informed user did not differ from that produced on such a user by the earlier design and confirmed the invalidity of the contested design, the slight differences in stitching and in shape not having a significant impact of the overall impression produced by those two designs.
Forms of order sought
11      The applicant claims that the Court should:
–        primarily, annul the contested decision and order EUIPO to decide on the subject matter again;
–        in the alternative, change the contested decision so as to fully uphold the appeal lodged by the applicant before the Board of Appeal and to preserve the validity of the contested design;
–        order EUIPO to pay the costs.
12      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
13      In support of its action, the applicant relies on a single plea in law, on the basis of Article 61(2) of Regulation No 6/2002, which is divided into two parts. The first part alleges infringement of essential procedural requirements, first of all in that the contested decision was inadequately reasoned and unreviewable and, secondly, that the Board of Appeal had omitted to examine all the arguments and evidence submitted by the applicant. The second part alleges infringement of Regulation No 6/2002, and more particularly recital 14 of that regulation, in that the Board of Appeal erred when assessing the individual character of the contested design.
14      The Court will examine, first, the applicant’s arguments alleging infringement of Regulation No 6/2002 and, secondly, those alleging infringement of essential procedural requirements.
The individual character of the contested design, within the meaning of Regulation No 6/2002
15      The applicant submits, first, that the Board of Appeal had inaccurately defined the nature of the products concerned, the sector to which they belong and the informed user of those products; secondly, that the degree of freedom of the designer had been incorrectly assessed; and, thirdly, that the designs at issue produce a different overall impression.
16      EUIPO disputes the applicant’s arguments.
17      Article 25(1)(b) of Regulation No 6/2002 provides that a Community design may be declared invalid if it does not fulfil the requirements of Articles 4 to 9 of that regulation and, in particular, that of novelty and individual character.
18      Under Article 6(1)(b) of Regulation No 6/2002, a registered Community design is 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, before the date of priority.
19      Article 6(2) of Regulation No 6/2002 also states that, in assessing that individual character, the degree of freedom of the designer in developing the design must be taken into consideration.
20      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.
21      The assessment of the individual character of a Community design proceeds then, in essence, from a four-stage examination. That examination consists in determining, 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 to the differences in the comparison of the designs; third, the degree of freedom of the designer in developing his or her design, the influence of which on the individual character is inversely proportional and; fourth, taking account of this, the outcome of the comparison, direct if possible, of the overall impressions produced on the informed user by contested design and by any earlier design disclosed to the public, taken individually (see judgment of 13 June 2019, Visi/one v EUIPO – EasyFix (Door hanger for vehicles), T‑74/18, EU:T:2019:417, paragraph 66 and the case-law cited; see also, to that effect, judgment of 20 October 2011, PepsiCo v
Grupo Promer Mon Graphic, C‑281/10 P, EU:C:2011:679, paragraphs 53, 55 and 59).
22      It is in the light of these principles that the Court must examine whether the Board of Appeal was entitled to conclude that the contested design lacked individual character in comparison with the earlier design, in so far as it produced the same overall impression as it on the informed user.
The nature of the products, the sector to which they belong and the informed user of those products
23      According to the applicant, the Board of Appeal had disregarded recital 14 of Regulation No 6/2002 in not taking into consideration the nature of the products in which the designs at issue were intended to be incorporated and of the industrial sector to which they belonged.
24      In that regard, the applicant claimed that the Board of Appeal had incorrectly redefined the products concerned as being ‘support cushions and pillows’, whereas it should have defined them as ‘inflatable healthy sitting pillows and cushions’, the former being part of a much wider and more heterogeneous category of products than the latter, which have specific characteristics or uses.
25      Furthermore, according to the applicant, in so far as the products concerned belong to the medical supplies sector, the informed user will be a purchaser reasonably informed on this kind of products, will demonstrate a high level of attention and will not perceive products such as neck positioning cushions or full body pregnancy pillows as being identical or similar to the healthy sitting pillows and cushions. That informed user is capable of comparing the designs at issue and of perceiving their different characteristics, whether ordinary or specific.
26      The applicant adds that the Board of Appeal, in defining the products concerned as being ‘support cushions and pillows’, merely followed the Locarno classification, which is solely administrative in character. However, it should have taken into account the other products in which the contested design in intended to be incorporated, such as ‘back braces’, ‘cushions for pelvis support’ and ‘orthopaedic supports’.
27      With regard to the nature and the sector of the products concerned, it should be borne in mind that, in terms of Article 3(2) of Commission Regulation (EC) No 2245/2002 of 21 October 2002 implementing Regulation No 6/2002 (OJ 2002, L 341, p. 28), the classification of products shall serve exclusively administrative purposes.
28      It should also be noted that, as set out in Article 3(a) of Regulation No 6/2002, ‘design’ means the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation.
29      According to Article 36(2) of Regulation No 6/2002, the application for registration of a Community design must contain an indication of the products in which the design is intended to be incorporated or to which it is intended to be applied.
30      However, although the indication of those products in the application for registration of a Community design is obligatory, that information will not, by virtue of Article 36(6) of Regulation 6/2002, affect the scope of the protection of the design as such (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 55).
31      Accordingly, it follows from Article 36(6) of Regulation No 6/2002 that, in order to determine the products in which a design is intended to be incorporated or applied, account should be taken not only of the relevant indication in the application for registration (see judgment of 6 June 2019, Porsche v EUIPO – Autec (Motor vehicles), T‑209/18, EU:T:2019:377, paragraph 33 and the case-law cited), but also, where necessary, the design itself, in so far as it makes clear the nature, the intended use or the function of the product. Taking the design into account may in fact enable the product to be placed within a broader category of goods and, therefore, to determine the informed user and the degree of freedom of the designer in developing the design (judgment of 18 March 2010, Representation of a circular promotional item, T‑9/07, EU:T:2010:96, paragraph 56).
32      In the present case, the designs at issue were registered for ‘support pillows’, while the application for registration of the contested design also referred to ‘back braces’, ‘cushions for pelvis support’ and ‘orthopaedic supports’.
33      First, it must be observed that, despite the indication in the application for registration, the representation of the contested design cannot be related to back braces or to orthopaedic supports.
34      Next, although, as EUIPO points out, it is not apparent from the representation of the contested design that the product in which it is intended to be incorporated has to be inflated, it follows from the indications ‘support pillows’ and ‘cushions for pelvis support’ in the application for registration that that product cannot lack volume, a cushion being, by definition, an article filled with stuffing.
35      The indication ‘cushions for pelvis support’ in the application for registration of the contested design is likely to cover healthy sitting pillows and cushions. However, the same does not automatically apply to the more general indication ‘support pillows’, also chosen by the applicant when filing the application for registration, which may cover pillows or cushions capable of being used to support different parts of the body for various reasons, whether medical, ergonomic, anatomical or for personal comfort.
36      Furthermore, it cannot be established from the representation of the contested design that it identifies a particular category of pillows or of cushions with a particular purpose. That design being represented only as seen from above, it is not possible to determine, without the lateral view, whether the width of the products in which it is intended to be incorporated and the angle of elevation between the centre and the edges of those products are compatible with the applicant’s submission that they have the unique function of producing an unstable sitting position, obliging the user to move constantly and to engage the dorsal muscles or the pelvic muscles. While that representation may designate products that have, inter alia, a medical purpose and permit a healthy sitting position, it is not, in the absence of sufficient details being given, of such a nature as to exclude other possible purposes and uses, such as the support or the maintenance of alignment of other parts of the body, in a lying or sitting position, for ergonomic, anatomical or comfort reasons.
37      Accordingly, it cannot be deduced either from the indications in the application for registration or from the representation of the contested design that the products in which it is destined to be incorporated belong to the specific category of ‘inflatable healthy sitting pillows and cushions’.
38      Lastly, the fact that it is apparent from the documents before the Court that the applicant for a declaration of invalidity indicated that the designs at issue had the visual appearance of a cushion for a healthy sitting position and that the products in which they were intended to be incorporated were used to support the body in a sitting position does not bind the Court, which must take into account, in view of the case-law cited in paragraphs 27  to 31 above, the relevant indication in the application for registration as well as the design itself.
39      It is apparent from paragraphs 35 to 37 above that the classification of ‘inflatable healthy sitting pillows and cushions’ given by the applicant cannot be sufficient, in the absence of detailed information to that effect, to establish that the designs at issue allow a particular category of support cushions or pillows to be identified which is distinguishable from support cushions and pillows in general owing to their nature, intended purpose and/or function.
40      Therefore, the Board of Appeal was fully entitled to find that the products in which the designs at issue were intended to be incorporated belonged to a wider category than ‘support pillows and cushions’.
41      As regards the informed user, that concept is not defined in Regulation No 6/2002. According to the case-law, that concept 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 in conflict, and the sectoral expert, who is an expert with detailed technical expertise. Thus, the concept of the informed user may be understood as referring, not to a user of average attention, but to a particularly observant one, either because of his or her personal experience or 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).
42      As regards, more specifically, the informed user’s level of attention, 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 proceed to analyse 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 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).
43      In this case, in view of the diverse uses and purposes of the products concerned and in accordance with the case-law cited at paragraphs 41 and 42 above, the informed user may be at the same time the end user of those products, whatever the purpose, be it medical, ergonomic, anatomical or for personal comfort, and a professional in the paramedical or ergonomy field who, without being a designer or a technical expert, knows the various products in the wider category of ‘support cushions and pillows’ and may illustrate their use, their characteristics and efficacy according to the type of positioning problem encountered. The informed user thus defined will show a relatively high level of attention with regard to those products.
44      Therefore the Board of Appeal did not err in its assessment when it rejected the applicant’s arguments that the products concerned belonged to the specific category of ‘inflatable healthy sitting pillows and cushions’ and that it had taken into consideration, in paragraph 19 of the contested decision, the informed user of support cushions and pillows, who had a certain knowledge of their various features and was aware of the various designs that exist in that sector.
The designer’s degree of freedom
45      The applicant claims that the Board of Appeal wrongly assessed the degree of freedom of the designer, which was limited, so that minor differences in the appearance of the products concerned were sufficient to produce essential and significant differences between them.
46      It must be borne in mind that the degree of freedom of the designer of a design is determined, inter alia, by the constraints of the features imposed by the technical function of the product or an element thereof, or by statutory requirements applicable to the product to which the design is applied. Those constraints result in a standardisation of certain features, which will thus be common to the designs applied to the product concerned (see judgment of 10 September 2015, H&M Hennes & Mauritz v OHIM – Yves Saint Laurent (Handbags), T‑525/13, EU:T:2015:617, paragraph 28 and the case-law cited).
47      The more the designer’s freedom in developing a design is restricted, the more likely it is that minor differences between the designs at issue will be sufficient to produce a different overall impression on an informed user. Conversely, the greater the designer’s freedom in developing a design, the less likely it is that minor differences between the designs at issue will be sufficient to produce a different overall impression on an informed user (judgment of 18 July 2017, Chanel v EUIPO – Jing Zhou and Golden Rose 999 (Ornamentation), T‑57/16, EU:T:2017:517, paragraph 30).
48      In the present case, the applicant is relying on the fact that the products concerned are ‘inflatable healthy sitting pillows and cushions’, in order to challenge the assessment of the degree of freedom of the designer, which would be limited, unlike that of the designer of ‘support pillows and cushions’.
49      However, it is clear from paragraphs 35 to 40 above that the Board of Appeal correctly held that the products concerned belonged to the category of ‘support pillows and cushions’. Certainly, the designer of such products must incorporate in the design the common characteristics of the products concerned, namely an ergonomic shape, a thickness by definition and a conception that prevents air, or any other filling material, from escaping. However, it has not been established that the freedom of the designer is subject to any other particular limitations, while the applicant itself recognises that the freedom of the designer of ‘support cushions and pillows’ is less restricted, as he or she is able to choose from a wide variety of shapes, materials, contours and decorations.
50      In any event, even if it were to be considered that the products concerned belong to the category of ‘inflatable healthy sitting pillows and cushions’, the degree of freedom of the designer would not be significantly limited. Although those products, intended to strengthen the lumbar and dorsal muscles, may have a rounded, ergonomic (bean-like) shape, in which the lateral sides are inflated and higher than the centre, and with regard to which the degree of freedom of the designer may be more restricted than for ‘support pillows and cushions’, the fact remains that the applicant has not submitted any proof of any regulatory or technical constraint which dictates a particular shape or diameter for those products.
51      Thus, the applicant’s assertions that ‘the product shall not be bigger than 45x45 cm’, ‘shall be inflatable, height and degree of the inflation depends on the amount of the air inside of the product’ and must have an ‘an ergonomic, rounded, (bean-like) shape’ do not constitute proof of the existence of technical or regulatory constraints which would dictate those dimensions and that shape to the designers of those products and, furthermore, indicate explicitly that the amount of air inside the product, therefore its thickness, may vary. The applicant has not therefore established the existence of technical or legal imperatives limiting the degree of freedom of the designer.
52      It follows from the foregoing that the Board of Appeal did not err in its assessment, in paragraph 22 of the contested decision, that the degree of freedom of the designer was not substantially limited.
Overall impression produced by the designs at issue on the informed user
53      The applicant submits that the products concerned differ in their shape and their internal stitching. It specifies that the earlier design has a rectangular shape with rounded corners, does not have significant sidecut on the sides and that the internal stitching in the centre, forming a double line in a ‘u’ shape and dividing the product into two different-sized parts, has the technical function of preventing air from reaching the central part. By contrast, the contested design represents an imprint of the silhouette of the back of a seated figure and has a significant sidecut on two sides, and the internal stitching in the centre, which is composed of two narrow, gently arched, vertical lines, has a purely aesthetic function. Accordingly, the applicant submits that the designs at issue would produce a different overall impression. It adds that the shape of the earlier design should not be protected and refers in that regard to an earlier decision of EUIPO.
54      According to 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 17 May 2018, Basil v EUIPO – Artex (Bicycle baskets), T‑760/16, EU:T:2018:277, paragraph 77).
55      The comparison of the overall impressions produced by the designs must be synthetic and may not be limited to an analytic comparison of a list of similarities and differences (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 58).
56      In order to examine the individual character of a design, a comparison should therefore be made between, on the one hand, the overall impression produced by the contested Community design and, on the other, the overall impression produced by each of the earlier designs legitimately relied on by the party seeking a declaration of invalidity (judgment of 22 June 2010, Shenzhen Taiden v OHIM – Bosch Security Systems (Communications equipment), T‑153/08, EU:T:2010:248, paragraph 24).
57      In the present case, the applicant’s arguments that the shape of the earlier design, being the same as that of the applicant for a declaration of invalidity’s design numbered 2371591-0001, which has been annulled, should not be taken into account in assessing the overall impression of the designs at issue, are unfounded. The examination of the individual character of the contested design must be assessed solely with regard to the earlier design, chosen by the applicant for a declaration of invalidity in support of its application for a declaration of invalidity (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 54). The annulment of the applicant for a declaration of invalidity’s design numbered 2371591-0001 does not therefore result in limiting the protection of the earlier design.
58      Design characteristics of an earlier design that are visible in representations of it are protected (see, to that effect, judgment of 4 July 2017, Murphy v EUIPO – Nike Innovate (Electronic wristband), T‑90/16, not published, EU:T:2017:464, paragraph 56). In the present case, those characteristics feature in such representations of the earlier design as are reproduced at paragraph 7 above, which have been made available to the public and which represent a support cushion of rectangular shape, with rounded corners, slightly perceptible convexity on three sides and a more marked concavity on the fourth side as well as vertical lines of stitching which divide the cushion into two symmetrical lateral parts, slightly inflated and raised in comparison with the smaller central part.
59      The contested design has the following characteristics: a rectangular shape with rounded corners, a slightly perceptible convexity on three sides and a strongly marked concavity on the fourth side, as well as two vertical lines that divide it into two symmetrical lateral parts, separated by a central part.
60      The designs at issue do therefore share certain characteristics.
61      It is possible that, in the comparison of the designs at issue, the impression produced by each of them may be dominated by certain characteristics of the products or parts of the products concerned. However, in order to determine whether a given characteristic dominates a product, or part of a product, it is necessary to evaluate the degree of influence that the different characteristics of the product or of the part at issue exercise on the appearance of that product or of that part (see, to that effect, judgment of 25 October 2013, Merlin and Others
v OHIM – Dusyma (Game), T‑231/10, not published, EU:T:2013:560, paragraph 36).
62      Such differences are insignificant in the overall impression produced by the designs at issue when they are not sufficiently pronounced to distinguish them in the perception of the informed user or to offset the similarities found between those designs (see, to that effect, judgment of 21 November 2013, El Hogar Perfecto del Siglo XXI v OHIM – Wenf International Advisers (Corkscrew), T‑337/12, EU:T:2013:601, paragraphs 49 to 54).
63      In the present case, the differences between the designs at issue, which lie in a shape that is marginally more curved and in lines of central stitching that are slightly wider apart from one another in the contested design than in the earlier design, are minimal.
64      The applicant’s arguments that the contested design will be perceived as representing the anatomical form of the human pelvis, as the stitching has a purely aesthetic function, whereas the earlier design will only be perceived as a common geometric shape in which the stitching has a technical function, cannot succeed.
65      The applicant has not demonstrated in any way that the informed user would perceive any characteristics of the sort. It presents no points of fact or of law in support of its claim that the informed user would actually recognise the earlier design as a representation of the human pelvis, or that he or she would make the distinction between the technical or aesthetic characteristics of the stitching in the designs at issue.
66      The comparison of the designs at issue placed side by side brings to light, furthermore, that the marginally more curved shape and the vertical lines in the contested design are not significantly different from the shape and the vertical stitching of the earlier design.
67      Consequently, the overall impression of the designs at issue is dominated by a rectangular shape, with rounded corners, with a convexity slightly perceptible on three sides and a marked concavity on the fourth side and two seams or lines dividing the products concerned into three parts. The synergy of those three fundamental characteristics conveys to the informed user, to whom particular vigilance and sensibility must be attributed, a similar overall impression.
68      The differences between the designs at issue are insufficiently marked to produce, in themselves, an overall impression on the informed user that is dissimilar to that produced by the earlier design, taking into account the degree, not substantially limited, of freedom of the designer in developing his or her designs. They are not therefore of a nature to confer individual character on the contested design.
69      Therefore, the Board of Appeal did not commit an error of assessment in determining that the designs at issue produced the same overall impression on the informed user – even if, as the Court has found in paragraph 43 above, he or she could simultaneously be the end user of the products concerned and a professional in the paramedical or ergonomy field – and that the contested design lacked individual character, with the result that the second part of the single plea must be rejected.
The alleged failure correctly to assess the evidence and infringement of the obligation to state reasons
70      The applicant claims that it is impossible to review the contested decision, since the facts and evidence on which the Board of Appeal relied in order to declare the contested design invalid are confused, since the Board of Appeal restricted itself to adopting the considerations and conclusions made by the Invalidity Division. It adds that the contested decision is based on insufficient reasons and that the Board of Appeal, first, omitted to examine all of the arguments and evidence it had filed and, second, had relied on findings that were not supported by any of the parties’ arguments.
71      EUIPO disputes the applicant’s arguments.
72      The first sentence of Article 62 of Regulation No 6/2002 provides that decisions of EUIPO shall state the reasons on which they are based.
73      The obligation to state reasons thus laid down has the same scope as that arising from Article 296 TFEU, as interpreted by settled case-law, that the reasoning of the author of the act must be shown clearly and unequivocally, in a way that enables, first, interested parties to know the justifications for the measure taken so as to be able to defend their rights and, second, the Courts of the European Union to exercise their jurisdiction to review the legality of the decision (see, by analogy, judgments of 10 May 2012, Helena Rubinstein and L’Oréal v OHIM, C‑100/11 P, EU:C:2012:285, paragraph 111, and of 6 September 2012, Storck v OHIM, C‑96/11 P, not published, EU:C:2012:537, paragraph 86).
74      In the present case, it is necessary, first of all, to recall that, contrary to what the applicant claims, the Board of Appeal was not bound to respond to all of its arguments.
75      Indeed the obligation to state reasons does not require the Board of Appeal to provide an account that follows exhaustively and one by one all the lines of argument put forward by the parties before them. It is sufficient to set out the facts and the legal considerations having decisive importance in the context of the decision (see, by analogy, judgments of 10 May 2012, Rubinstein and L’Oréal v OHIM, C‑100/11 P, EU:C:2012:285, paragraph 112, and of 7 June 2017, Mediterranean Premium Spirits v EUIPO – G-Star Raw (GINRAW), T‑258/16, not published, EU:T:2017:375, paragraph 89).
76      Next, regarding the nature of the products, the sector to which they belong and the degree of freedom of the designer, it is apparent from paragraphs 18, 19, 22 and 23 of the contested decision that the Board of Appeal took account of the applicant’s arguments and stated the reasons why it had rejected them, in concurring essentially with the considerations and the conclusions of the Invalidity Division.
77      Regarding more particularly the degree of freedom of the designer, the Board of Appeal essentially stated the reasons why it had concurred with the Invalidity Division’s finding, specifying in paragraph 23 of the contested decision that the applicant had not shown that there was any regulatory or technical constraint that would require the products concerned to have a particular shape.
78      In that regard, when the Board of Appeal confirms a lower-level decision of EUIPO in its entirety, that decision, together with its reasoning, forms part of the context in which the Board of Appeal’s decision was adopted, a context which is known to the parties and which enables the Court to exercise in full its jurisdiction to review legality as to the well-foundedness of the Board of Appeal's assessment (see judgment of 21 November 2013, El Hogar Perfecto del Siglo XXI v OHIM – Wenf International Advisers (Corkscrew), T‑337/12, EU:T:2013:601, paragraph 43 and the case-law cited).
79      Regarding the assessment of the global impression produced by the designs at issue, it is apparent from paragraphs 24 to 31 of the contested decision that the Board of Appeal had assessed the differences in the appearance of those designs, such as the stitching or the internal lines, the size and the shapes of the parts delimited by them and had taken account of the applicant’s arguments, even if it had not explicitly mentioned the items it had filed as part of the invalidity proceedings. It did, however, find that the applicant’s argumentation was unfounded.
80      Thus, contrary to what the applicant claims, the Board of Appeal had proceeded to an examination of all the elements of difference and of similarity between the designs at issue during the comparison between the global impression produced by the contested design and that produced by the earlier design on the informed user.
81      Lastly, although the lack or inadequacy of reasoning constitutes a plea alleging the infringement of essential procedural requirements, it differs, as such, from a plea based on the inaccuracy of the reasons for the decision, a review of which examines the well-foundedness of that decision (see, by analogy, judgments of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 67, and of 22 September 2016, Pensa Pharma v EUIPO, C‑442/15 P, not published, EU:C:2016:720, paragraph 35 and the case-law cited).
82      In essence, the applicant’s arguments alleging a lack of reasoning relate to the alleged inaccuracy of the grounds for the contested decision, the review of which examines the well-foundedness of that decision, a review that was carried out by the Court during the examination of the second part of the single plea.
83      It follows that the Board of Appeal examined the applicant’s arguments and set out in a sufficiently clear and unequivocal manner the reasoning by which it had confirmed the invalidation of the contested design.
84      Having regard to all of the foregoing considerations, the Court must reject the first part of the single plea as being, in any event, unfounded and, consequently, dismiss the action 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, in accordance with the form of order sought by EUIPO.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Dvectis CZ s. r. o.to pay the costs.
Spielmann
Öberg
Spineanu-Matei
Delivered in open court in Luxembourg on 15 October 2020.
E. Coulon
M. van der Woude
Registrar
President
*      Language of the case: English.