EN Official Journal of the European Union C 300/12

Appeal brought on 25 April 2017 by Mast-Jägermeister SE against the judgment of the General Court (Eighth Chamber) of 9 February 2017 in Case T-16/16, Mast-Jägermeister SE v European Union Intellectual Property Office

(Case C-217/17 P)

(2017/C 300/15)

Language of the case: German

Parties

Appellant: Mast-Jägermeister SE (represented by: C. Drzymalla, Rechtsanwalt)

Other party to the proceedings: European Union Intellectual Property Office

Form of order sought

The appellant claims that the Court should:

— set aside in its entirety the judgment of the General Court of 9 February 2017 in Case T-16/16, by which the action was dismissed and the present appellant ordered to pay the costs;

— grant the first and third pleas in law made at first instance, should the appeal be declared well founded.

Grounds of appeal and main arguments

The appellant’s appeal is directed against the judgment of the General Court of 9 February 2017 in Case T-16/16, which concerns the requirements governing a representation of a design for the purposes of attribution of a date of filing, namely with regard to the applications for registration of designs No 002683615-0001 and No 002683615-0002 (beakers).

The General Court judgment under appeal infringes the provisions of Article 46(2) and (3) of Regulation No 6/2002, in conjunction with Articles 36 and 38 of that regulation, insofar as, according to the General Court, it follows from the meaning and purpose of those provisions that applications for registration are not to be treated as applications for registration of Community designs if, in the Office’s view, there is uncertainty or ambiguity in respect of the subject matter of the design applied for. It must, however, be concluded from the significance of the date of filing for the design applicant that the representation of the design cannot be subject to stringent requirements and that Article 36(1)(c) merely requires the representation of the design to be physically suitable for reproduction in order for the date of filing to be attributed under Article 38 of Regulation No 6/2002.

Nothing else — contrary to the General Court’s view — follows from Article 4(1)(e) of Regulation No 2245/2002, in conjunction with Article 10(1)(c) and 10(2) thereof. Insofar as it is stated therein that the reproduction of the design must be of a quality allowing all the details for which protection is sought to be distinguished clearly, that provision also means only the representation’s physical suitability for reproduction. This is so particularly in view of the fact that the applicant alone determines the subject matter of the application, that is to say, in respect of what it is applying for protection. Lastly, the final determination of the extent of protection for a design is a matter, in any event, solely and exclusively for a court dealing with infringement proceedings.

Insofar as the registration of the design with a view to its reproduction might lead to legal uncertainty, registration may be denied, but not the attribution of a date of filing, which is of major importance for the applicant by reason of the provisions on the effect of a first filing giving rise to a right of priority under Article 4(A) of the Paris Convention for the Protection of Industrial Property.

In this context, the General Court failed to have regard for the unequivocal wording of the differentiated provisions of Article 46(2) and Article 46(3). An application for registration is to be considered, under Article 46(2) of Regulation No 6/2002, not to be an application for registration of a Community design only if the deficiencies in the application relate to the requirements of Article 36(1) of that regulation. However, Article 36(1) requires, with regard to the representation of the design, only that it must be suitable for reproduction. Any further irregularities, in particular those arising from the application of Regulation No 2245/2002, could, under Article 46(3) of Regulation No 6/2002, lead only to a rejection of the application for registration, after prior attribution of a date of filing. This is evident from the reference in Article 46(3) to Article 45(2)(a), in conjunction with Article 36(5),of Regulation No 6/2002.