According to Article 110(1) of Regulation No 6/2002, protection as a Community design does not exist ‘for a design which constitutes a component part of a complex product used within the meaning of Article 19(1) for the purpose of the repair of that complex product so as to restore its original appearance’.

It is therefore apparent from the wording of that provision that the application of the ‘repair’ clause is subject to several conditions relating, first of all, to the existence of a Community design, next, to the presence of a ‘component part of a complex product’ and, finally, to the need for ‘[use] within the meaning of Article 19(1) for the purpose of the repair of that complex product so as to restore its original appearance’.

In the first place, it should be noted that under Article 110(1) of Regulation No 6/2002, all protection for a ‘Community design’ is excluded, if the conditions laid down by that provision are met. It follows, as the Advocate General noted, in essence, in points 90 and 91 of his Opinion, that Article 110(1) is applicable only to component parts which are protected as a Community design and which, as follows from Article 1(1) of that regulation, satisfy the conditions for protection laid down in that regulation, in particular in Article 4(2) thereof.

In the second place, Article 110(1) of Regulation No 6/2002 applies only to ‘component parts of a complex product’. In those circumstances, it must be held that, through the words ‘component parts of a complex product’, Article 110(1) of Regulation No 6/2002 covers multiple components, intended to be assembled into a complex industrial or handicraft item, which can be replaced permitting disassembly and re-assembly of such an item, without which the complex product could not be subject to normal use.

In the third place, Article 110(1) of Regulation No 6/2002 requires, for the purposes of applying the ‘repair’ clause, that the component part of the complex product be ‘used within the meaning of Article 19(1) for the purpose of the repair of that complex product’. In that regard, first, it is apparent from Article 19(1) of Regulation No 6/2002 that the ‘use’ of the component part within the meaning of that provision covers the making, offering, putting on the market, importing, exporting or using of a product in which the design is incorporated or to which it is applied, or stocking such a product for those purposes. As is apparent from the wording of that article, that concept is construed broadly and encompasses any use of a component part for the purposes of repair. Secondly, the use of the component part must have the aim of ‘permitting the repair’ of the complex product. Thus, the possibility of relying on the ‘repair’ clause requires that the use of the component part be necessary for the repair of a complex product that has become defective, inter alia due to the lack of the original part or damage caused to it. Any use of a component part for reasons of preference or purely of convenience, such as, inter alia, the replacement of a part for aesthetic purposes or customisation of the complex product is therefore excluded from the ‘repair’ clause.

In the fourth place, Article 110(1) of Regulation No 6/2002 requires, for the purposes of applying the ‘repair’ clause, that the repair of the complex product be done ‘so as to restore its original appearance’. Having regard to Article 3(a) of Regulation No 6/2002, it should be noted that the appearance of a product or part of a product results from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation.

It is further necessary that the repair be done so as to restore the complex product to its ‘original’ appearance. It follows that, in order for the ‘repair’ clause to be applied, the component part must be used so as to restore the complex product to the appearance it had when it was placed on the market. It must be concluded that the ‘repair’ clause applies only to component parts of a complex product that are visually identical to original parts. Any use of a component part which is not for the purpose of restoring a complex product to the appearance it had when it was placed on the market is, accordingly, excluded. That is the case if, inter alia, the replacement part does not correspond, in terms of its colour or its dimensions, to the original part, or if the appearance of a complex product has changed since it was placed on the market.

(see paras 58-60, 63, 65, 67-72, 74, 75, 77)