Source: EURLEX
Language: en
Format: md

Case T‑760/16

Basil BV

v

European Union Intellectual Property Office

(Community design — Invalidity proceedings — Registered Community design representing baskets adapted for cycles — Ground for invalidity — Inadmissibility of the application for a declaration of invalidity — Article 52(3) and Article 86(5) of Regulation (EC) No 6/2002 — Disclosure of the earlier design — Individual character — Different overall impression — Article 6 and Article 25(1)(b) of Regulation No 6/2002)

Summary — Judgment of the General Court (Ninth Chamber), 17 May 2018

1. Community designs — Surrender and invalidity — Invalidity proceedings — Inadmissibility of the invalidity proceedings — Existence of a decision of the Community design court which has acquired the force of res judicata — Applicability of Article 52(3) of Regulation No 6/2002 to the decisions of EUIPO — Precluded — Provisions relating only to decisions of the Community design courts

   (Council Regulation No 6/2002, Arts 52(3), 80 and 86(5))
2. Community designs — Appeals procedure — Boards of Appeal — Classification as administration of EUIPO — Right of the parties to a fair ‘process’ — None

   (Charter of Fundamental Rights of the European Union, Art. 47; Council Regulation No 6/2002)
3. Community designs — Grounds for invalidity — No individual character — Previous disclosure of identical design — Proof of the disclosure

   (Council Regulation No 6/2002, Arts 6(1), 7, 25(1)(b) and 65 (1); Commission Regulation No 2245/2002, Art. 28(1)(b)(v) and (vi))
4. Community designs — Decisions of EUIPO — Principle of equal treatment — Principle of sound administration — EUIPO’s previous decision-making practice — Principle of legality — Need for a strict and complete examination in each particular case

   (Council Regulation No 6/2002)
5. Community designs — Unregistered Community designs — Disclosure — Meaning — Distribution to traders operating in the sector

   (Council Regulation No 6/2002, Arts 7(1) and 11(2))
6. Community designs — Grounds for invalidity — No individual character — Disclosure to the public — Exception — Facts not reasonably capable of being known to specialist circles of the sector concerned

   (Council Regulation No 6/2002, Arts 6(1), 7(1) and 25(1)(b))
7. Community designs — Grounds for invalidity — No individual character — Design not giving the informed user a different overall impression from that produced by the earlier design — Global assessment of all the elements of the earlier design

   (Council Regulation No 6/2002, Arts 6(1) and 25(1)(b))
8. Community designs — Grounds for invalidity — No individual character — Design not giving the informed user a different overall impression from that produced by the earlier design — Informed user — Meaning

   (Council Regulation No 6/2002, Arts 6(1) and 25(1)(b))
9. Community designs — Grounds for invalidity — No individual character — Design not giving the informed user a different overall impression from that produced by the earlier design — Representation of baskets adapted for cycles

   (Council Regulation No 6/2002, Arts 6(1) and 25(1)(b))

1. Article 52(3) of Regulation No 6/2002 on Community designs provides that an application for a declaration of invalidity brought before the European Union Intellectual Property Office (EUIPO) shall not be admissible if an application relating to the same subject matter and cause of action, and involving the same parties, has been adjudicated on by a Community design court and has acquired the authority of a final decision. Those provisions, which relate only to the decisions of Community design courts, do not apply to a decision of EUIPO.

   In the first place, it follows from the provisions of Article 80 of Regulation No 6/2002 that a Community design court is a national court of a Member State. Article 52(3) of Regulation No 6/2002 therefore does not apply when the matter has already been adjudicated on by EUIPO, but only when it has been adjudicated on by the national court of a Member State.

   In the second place, Article 86(5) of Regulation No 6/2002, according to which no counterclaim for a declaration of invalidity of a registered Community design may be made if an application relating to the same subject matter and cause of action, and involving the same parties, has already been determined by EUIPO in a decision which has become final, does not govern proceedings before EUIPO and, in particular, its Boards of Appeal, but proceedings before Community design courts.

   In the third place, Article 52(3) of Regulation No 6/2002 cannot be applied by analogy to cases where EUIPO has already adjudicated on an application for a declaration of invalidity. That is because it has not been established that there is an omission in Article 52(3) of Regulation No 6/2002 that is incompatible with a general principle of law which could be remedied by an application by analogy.

   (see paras 17-20, 27, 29, 30)
2. See the text of the decision.

   (see para. 26)
3. See the text of the decision.

   (see paras 41, 42)
4. See the text of the decision.

   (see paras 54, 55)
5. See the text of the decision.

   (see para. 64)
6. See the text of the decision.

   (see para. 66)
7. See the text of the decision.

   (see paras 77, 78)
8. See the text of the decision.

   (see para. 79)
9. See the text of the decision.

   (see paras 80-85)

[Top](#document1)