Easy Sanitary Solutions BV and European Union Intellectual Property Office v Group Nivelles.
Date: 2017-09-21
49


EUIPO maintains that the Court of Justice has already held in its judgment of 19 June 2014, Karen Millen Fashions (C‑345/13, EU:C:2014:2013, paragraph 26) that, as regards the assessment of the individual character of a design referred to in Article 6 of Regulation No 6/2002, such a design may be compared with earlier individualised and defined designs, but not with an amalgam of specific features or parts of earlier designs. EUIPO claims that such an assessment would also be appropriate when examining the novelty of a design within the meaning of Article 5 of that regulation.
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In addition, as regards the argument relating to the infringement of Article 5 of Regulation No 6/2002, it should be added that, by requiring that, in order for a design to be considered to be new, ‘no identical design has been made available to the public’, that provision implies that the assessment of the novelty of a design must be conducted in relation to one or more specific, individualised, defined and identified designs from among all the designs which have been made available to the public previously (see, by analogy, regarding Article 6 of Regulation No 6/2002, judgment of 19 June 2014, Karen Millen Fashions, C‑345/13, EU:C:2014:2013, paragraph 25).
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In that regard, it should be noted that, according to Article 3(a) of that regulation, a design is defined as being ‘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’. It follows that, in the context of the system set out by Regulation No 6/2002, appearance is the decisive factor of a design.
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However, it is apparent from the case-law of the Court of Justice that an error of law committed by the General Court does not invalidate a judgment under appeal if its operative part is well founded on other legal grounds (see judgments of 18 July 2013, FIFA v Commission, C‑204/11 P, EU:C:2013:477, paragraph 43, and of 11 May 2017, Dyson v Commission, C‑44/16 P, EU:C:2017:357, paragraph 55).
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In that regard, it should be noted that, in accordance with Article 6 of Regulation No 6/2002, a design is to be 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. The Court of Justice has already held that the concept of the ‘informed user’, which is not defined in that regulation, may be understood as referring, not to a user of average attention, but to a particularly observant one, either because of his personal experience or his extensive knowledge of the sector in question (see, to that effect, judgment of 20 October 2011, PepsiCo v Grupo Promer Mon Graphic, C‑281/10 P, EU:C:2011:679, paragraph 53).
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It is true that, according to the case-law of the Court of Justice, the adjective ‘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 interest in the products concerned, shows a relatively high degree of attention when he uses them (judgment of 20 October 2011, PepsiCo v Grupo Promer Mon Graphic, C‑281/10 P, EU:C:2011:679, paragraph 59).