Where, in the context of an application for invalidity, the examination of the novelty of the contested design, as regards the earlier designs relied on by the applicant, is incomplete, an examination, by the Court of the novelty of the contested design, with regard to all the evidence relied on by the applicant before the adjudicating bodies of OHIM, would imply, in essence, the exercise of administrative and investigatory functions specific to OHIM and would therefore upset the institutional balance on which the division of jurisdiction between OHIM and the Court is based.

The review carried out by the General Court under Article 61 of Regulation No 6/2002 is a review of the legality of the decisions of the OHIM Boards of Appeal. It may annul or alter a decision against which an action has been brought only if, at the time the decision was adopted, it was vitiated by one of the grounds for annulment or alteration set out in Article 61(2) of that regulation. It follows that the power of the General Court to alter decisions does not have the effect of conferring on that Court the power to substitute its own reasoning for that of a Board of Appeal or to carry out an assessment on which that Board of Appeal has not yet adopted a position. Exercise of the power to alter decisions must therefore, in principle, be limited to situations in which the General Court, after reviewing the assessment made by the Board of Appeal, is in a position to determine, on the basis of the matters of fact and of law as established, what decision the Board of Appeal was required to take.

In order to determine whether, in accordance with Regulation No 6/2002, the nature of the product to which a design relates may influence the assessment of its novelty or individual character, it should be noted that, as is clear from Article 3(a) of that regulation, the term ‘design’ as used in that regulation, means the appearance of the whole or a part of a product. It follows that the protection of a design for the purposes of Article 4(1) of Regulation No 6/2002 consists in the protection of the appearance of a product.

Taking into account, inter alia, Article 36(6) of Regulation No 6/2002 and the reference to ‘a product’ in the second sentence of Article 19(1) of that regulation, the conclusion must be drawn that a registered Community design confers on its holder the exclusive right to use on any sort of product (and not only on the product stated in the application for registration) the design in question and, under Article 10 of that regulation, any design which does not produce on the informed user a different overall impression. It also confers on its holder the right to prevent any third party from using on any sort of product the design which it holds and any design which does not produce on the informed user a different overall impression. If it were otherwise, the second sentence of Article 19(1) would refer not to ‘a product’, but merely to the product (or products) stated in the application for registration.

Thus, a Community design cannot be regarded as being novel, for the purposes of Article 5(1) of Regulation No 6/2002, if an identical design has been made available to the public before the dates specified in that provision, even if that earlier design is intended to be incorporated into a different product or to be applied to a different product.

Moreover, in accordance with the first sentence of Article 7(1) of Regulation No 6/2002, an earlier design, incorporated into, or applied to, a specific product is deemed to have been made available to the public if it has been published, except where that event could not reasonably have become known in the normal course of business to the circles specialised in the sector to which the product in question belongs, operating within the European Union. The ‘sector concerned’, within the meaning of Article 7(1) of Regulation No 6/2002, is not limited to that of the product in which the contested design is intended to be incorporated or applied. Accordingly, an earlier design incorporated in or applied to a product that is different from the one to which the later design relates is, in principle, relevant for the purposes of assessing the novelty, within the meaning of Article 5 of Regulation No 6/2002, of that later design.

However, as is apparent from the wording of recital 14 of Regulation No 6/2002, the nature of the product concerned by a contested design and the industrial sector to which it relates may have a certain relevance and must be taken into account for the purpose of assessing the individual character, within the meaning of Article 6 of Regulation No 6/2002, of a design. In that regard, the user to be taken into consideration is a user of the product to which that design applies or in which the latter is incorporated.

It follows that identification of the product to which an earlier design applies or in which the latter is incorporated, relied on in order to dispute the individual character, within the meaning of Article 6 of Regulation No 6/2002, of a later design, is relevant for that assessment. It is through the identification of the product concerned that it will be possible to determine whether the informed user of the product to which the later design applies or in which the later design is incorporated is aware of the earlier design. It is only if that latter condition is fulfilled that the earlier design may prevent the later design from being recognised as having individual character.

(see paras 112, 115, 116, 119, 122-124, 129, 130, 132)