1 This request for a preliminary ruling concerns the interpretation of Article 8(3), Article 10 and Article 89(1) of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1).
2 The request has been made in proceedings between LEGO A/S (‘Lego’) and Pozitív Energiaforrás Kft. concerning an alleged infringement by the latter of two Community designs of which Lego is the holder.
3 Regulation No 6/2002 was amended by Regulation (EU) 2024/2822 of the European Parliament and of the Council of 23 October 2024 (OJ 2024 L 2822, p. 1). However, in view of the date of the facts giving rise to the dispute in the main proceedings, the present reference for a preliminary ruling must be examined in the light of the initial version of Regulation No 6/2002.
4 Recitals 7, 10, 11 and 14 of Regulation No 6/2002 state:
5 Article 3 of that regulation, entitled ‘Definitions’, provides: ‘For the purposes of this Regulation:
6 Under Article 4(1) of that regulation: ‘A design shall be protected by a Community design to the extent that it is new and has individual character.’
7 Article 5 of that regulation, entitled ‘Novelty’, provides: ‘1. A design shall be considered to be new if no identical design has been made available to the public: 2. Designs shall be deemed to be identical if their features differ only in immaterial details.’
8 Article 6 of Regulation No 6/2002, entitled ‘Individual character’, provides: ‘1. A design shall 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: 2. In assessing individual character, the degree of freedom of the designer in developing the design shall be taken into consideration.’
9 Article 8 of that regulation, entitled ‘Designs dictated by their technical function and designs of interconnections’, is worded as follows: ‘1. A Community design shall not subsist in features of appearance of a product which are solely dictated by its technical function. 2. A Community design shall not subsist in features of appearance of a product which must necessarily be reproduced in their exact form and dimensions in order to permit the product in which the design is incorporated or to which it is applied to be mechanically connected to or placed in, around or against another product so that either product may perform its function. 3. Notwithstanding paragraph 2, a Community design shall under the conditions set out in Articles 5 and 6 subsist in a design serving the purpose of allowing the multiple assembly or connection of mutually interchangeable products within a modular system.’
10 Article 10 of that regulation, entitled ‘Scope of protection’, provides: ‘1. The scope of the protection conferred by a Community design shall include any design which does not produce on the informed user a different overall impression. 2. In assessing the scope of protection, the degree of freedom of the designer in developing his design shall be taken into consideration.’
11 Article 19(1) of that regulation, entitled ‘Rights conferred by the Community design’, provides: ‘A registered Community design shall confer on its holder the exclusive right to use it and to prevent any third party not having his consent from using it. The aforementioned use shall cover, in particular, 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.’
12 Article 89 of Regulation No 6/2002, entitled ‘Sanctions in actions for infringement’, is worded as follows: ‘1. Where in an action for infringement or for threatened infringement a Community design court finds that the defendant has infringed or threatened to infringe a Community design, it shall, unless there are special reasons for not doing so, order the following measures: 2. The Community design court shall take such measures in accordance with its national law as are aimed at ensuring that the orders referred to in paragraph 1 are complied with.’
13 Lego is the holder of Community design No 001950981-0001, registered with a date of priority of 22 November 2011, the subject matter of which is a coupling component of a toy building set. That coupling component consists of a cylinder with studs and two cross-section axles, perpendicular to each other and to the cylinder, which are connected to the cylinder by means of a cylindrical base. The representation of that Community design is as follows:
14 Lego is also the holder of Community design No 002137190-0002, registered with a date of priority of 16 November 2012 (together with the Community design referred to in the preceding paragraph, ‘the Lego designs’). The subject matter of that design is a coupling component of a toy building set in the form of a brick with two studs on the top, two tubes on the underside and two studs with holes in the middle on one side. The representation of that Community design is as follows:
15 The toy building sets of which those two pieces form part are modular systems in which the various plastic building blocks can be easily put together and taken apart, which makes it possible freely to create and disassemble building structures of varying shapes.
16 Pozitív Energiaforrás sought to import into Hungary, under the trade mark Qman, toy building sets also composed of modular plastic pieces (‘the toy sets at issue’), which include, inter alia, one or more of the building blocks the image of which is reproduced below (‘the pieces concerned’):
17 Following a complaint by Lego, the Nemzeti Adó- és Vámhivatal Veszprém Megyei Adó- és Vámigazgatósága (Veszprém County Tax and Customs Directorate, under the National Tax and Customs Office, Hungary) ordered the seizure of the toy sets at issue, and then initiated infringement proceedings against the manager of Pozitív Energiaforrás on the ground of its suspicion that there had been an infringement of Lego’s intellectual property rights.
18 On 22 June 2022, Lego submitted an application, pursuant to Articles 10 and 89 of Regulation No 6/2002, to the Fővárosi Törvényszék (Budapest High Court, Hungary) for an interim measure seeking to maintain that seizure.
19 The court dismissed that application by way of an order. It found that the Lego designs were covered by the protection referred to in Article 8(3) of Regulation No 6/2002 and that, since the form of the connection components protected by those designs was solely dictated by their technical function, they necessarily had to be reproduced in their exact form and dimensions in order to perform their function as connectors in the toy building set of which they formed part, so that the designer’s degree of freedom in developing such a form was very limited. Taking the view that the ‘informed user’ to be taken into account for the purpose of assessing the scope of protection was the user who looked at such designs with a particularly keen eye attentive to the smallest detail, that court, on the basis of a comparison between the registered representations of the Lego designs and the photographic reproductions of the pieces concerned, held that the latter produced on the informed user a different overall impression from that produced by the Lego designs.
20 As regards Community design No 001950981-0001, referred to in paragraph 13 of the present judgment, it was held, in that order, that the divergence in the cylindrical bases, the connecting surfaces, the form of the crosses and certain lines resulted in differences in the overall impression produced on the informed user. As regards Community design No 002137190-0002, referred to in paragraph 14 of the present judgment, it was held that the bricks imported by Pozitív Energiaforrás, with their curved rear wall and their rounded shapes instead of the right angles of the Lego bricks, also produced a different overall impression on the informed user.
21 The Fővárosi Ítélőtábla (Budapest Regional Court of Appeal, Hungary), which heard an appeal brought by Lego, overturned that order and ordered the seizure of the toy sets at issue on the ground that the Lego designs did not produce on the informed user a different overall impression from that produced by the pieces concerned.
22 That decision was upheld by the Kúria (Supreme Court, Hungary), which heard an appeal brought by Pozitív Energiaforrás. In the light, in particular, of the case-law of the Court of Justice, that court held that, contrary to what the court of first instance had held, it could not be expected of the informed user, who is to be taken into consideration in assessing the scope of the protection conferred by the Lego designs, to possess a level of concentration such as that required for careful observation attentive to the smallest detail of the products at issue. Consequently, the Kúria (Supreme Court) held that the pieces concerned did not produce on the informed user a different overall impression from that produced by the Lego designs, in so far as they did not differ significantly in size or design.
23 Lego then brought an action for infringement against Pozitív Energiaforrás before the Fővárosi Törvényszék (Budapest High Court), which is the referring court.
24 According to the referring court, the Lego designs are covered by the exception provided for in Article 8(3) of Regulation No 6/2002, since their purpose is to allow the multiple assembly or connection of mutually interchangeable products within a modular system.
25 According to that court, Article 8(3) of Regulation No 6/2002 makes it possible to confer protection, as a Community design, on features of appearance of a product which are solely dictated by its technical function and to guarantee, for the holder of such a design, rights equivalent to those normally conferred by a patent. Such a situation would, however, be liable to lead to that holder, by relying on successive Community designs obtained following the expiry of the patent protecting his or her product, being able to prevent competitors from offering a product incorporating some of the functional characteristics of his or her product or limit the possible technical solutions. Moreover, that is the case of Lego, which, in the case in the main proceedings, relies on the protection obtained by way of derogation for designs which are covered by expired patents, and which have been developed by routine technical design work, in order to oppose the importation of the toy sets at issue on account of the presence, in those toy sets, of pieces in respect of which the Fővárosi Ítélőtábla (Budapest Regional Court of Appeal) and the Kúria (Supreme Court) have considered that they did not produce on the informed user a different overall impression from that produced by the Lego designs.
26 The referring court is uncertain as to what abilities the ‘informed user’ referred to in Article 10 of Regulation No 6/2002 is supposed to possess when it comes to assessing the overall impression produced on him or her by such designs. In particular, it seeks clarification as to whether the scope of that concept, as it results in particular from the judgment of 20 October 2011, PepsiCo v Grupo Promer Mon Graphic (C‑281/10 P, EU:C:2011:679), namely that of a user who is not an expert or specialist capable of observing in detail the minimal differences that may exist between the designs at issue, can be applied in the context of Article 8(3) of Regulation No 6/2002. According to that court, it cannot be ruled out that, in view of the exceptional nature of the protection conferred by Article 8(3) of Regulation No 6/2002, such a user should be regarded as being a user who possesses technical knowledge and observational and analytical capabilities comparable to those which prevail, in patent law, when it comes to assessing whether an activity is inventive.
27 In that regard, the referring court is of the view that, if the concept of ‘informed user’, for the purposes of Article 8(3) of Regulation No 6/2002, were not to be defined by reference, inter alia, to the capability of such a user, in the light of his or her technical expertise, to observe in detail the designs at issue and to detect the minimal differences that may exist between them, that could lead to such differences being regarded as impossible to detect as part of an overall perception of those designs, so that it would become, de facto, impossible to work around the Community designs which protect them.
28 The referring court is also uncertain as to the scope of the concept of the ‘overall impression’ produced on the informed user by a design the features of which are dictated solely by its technical function and which have no aspects of a purely aesthetic nature. In that regard, it takes the view that the visual effect of such a design is of secondary importance in relation to its functional characteristics. The similarities and differences between such designs can be detected not by means of observation and recourse to concepts that form part of the visual impression, but by means of technical analysis and reasoning. It could therefore be envisaged to broaden the concept of ‘overall impression’ in order to include not only the visual perception of the appearance of the design, but also the technical opinion of a sectoral expert.
29 Furthermore, the request for a preliminary ruling refers to the interpretation of Article 89(1) of Regulation No 6/2002 and, more specifically, to the scope of the concept of ‘special reasons’ allowing a Community design court, where appropriate, not to make one of the orders referred to in that provision.
30 Thus, in the context of the case before it, the referring court asks whether, if it were to find that Pozitív Energiaforrás has infringed the Lego designs, it could, having regard, first, in particular to the partial nature of the infringement, since it does not relate to the entirety of the toy sets at issue but only to the pieces concerned, which are present in those toy sets only in minimal quantities, and, second, to the objective of avoiding the creation of unnecessary barriers to legitimate trade, decide to uphold the claim pursued by the holder of the design only to a limited extent, or even to dismiss it.
31 In those circumstances, the Fővárosi Törvényszék (Budapest High Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
32 Lego submits that the two questions referred for a preliminary ruling may be declared inadmissible, since the interpretation of Regulation No 6/2002 suggested in the request for a preliminary ruling is based on a failure to have regard not only to the relevant provisions of that regulation and the principles underlying it, but also to the settled case-law of the Court.
33 In that regard, it should be recalled that, in proceedings under Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of each case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling. It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 29 July 2024, LivaNova, C‑713/22, EU:C:2024:642, paragraph 53 and the case-law cited).
34 In the present case, the referring court, hearing an action for infringement, is required to determine, for the purpose of assessing the merits of that action, the scope of the protection conferred on the holder of designs covered by Article 8(3) of Regulation No 6/2002 and, where appropriate, the scope of the sanctions provided for by that regulation if an infringement is found. To that end, that court is uncertain as to the interpretation of Article 8(3), Article 10 and Article 89(1) of that regulation.
35 It does not therefore appear that the provisions of EU law the interpretation of which is sought by that court bear no relation to the purpose of the main action or that the issues raised by those questions are not relevant to the resolution of that action.
36 In those circumstances, the objection alleging that the referring court misconstrued the scope of EU law does not relate to the admissibility of the request for a preliminary ruling, but is inextricably linked to the answer to be given to the questions referred and is therefore not such as to entail the inadmissibility of those questions (see, by analogy, judgments of 28 June 1984, Moser, 180/83, EU:C:1984:233, paragraph 10, and of 15 July 2021, Latvijas dzelzceļš (Railway service facilities), C‑60/20, EU:C:2021:610, paragraph 27).
37 Consequently, the questions referred are admissible.
38 By its first question, the referring court asks, in essence, whether Article 10 of Regulation No 6/2002 must be interpreted as meaning that the scope of the protection conferred by a Community design under Article 8(3) of that regulation must be assessed on the basis of the perception of an informed user who, possessing technical knowledge similar to that which may be expected of a sectoral expert, examines the design concerned down to the smallest detail and whose overall impression is based primarily on technical considerations.
39 As a preliminary point, it should be recalled that, in accordance with Article 3(a) of Regulation No 6/2002, a design is defined as ‘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, under the system laid down by that regulation, appearance is the decisive factor for a design (judgments of 21 September 2017, Easy Sanitary Solutions and EUIPO v Group Nivelles, C‑361/15 P and C‑405/15 P, EU:C:2017:720, paragraph 62, and of 2 March 2023, Papierfabriek Doetinchem, C‑684/21, EU:C:2023:141, paragraph 19).
40 In accordance with Article 10 of that regulation, the exclusive right, referred to in Article 19 of that regulation, conferred by a Community design is to include any design which does not produce on the ‘informed user’ a different ‘overall impression’ from that Community design. In assessing the scope of that protection, the ‘degree of freedom of the designer in developing his design’ is to be taken into consideration.
41 Article 8 of Regulation No 6/2002 excludes from that protection, in paragraph 1 thereof, features of appearance which are solely dictated by the technical function of the product and, in paragraph 2 thereof, features of appearance which must necessarily be reproduced in their exact form and dimensions in order to permit the product in which the design is incorporated or to which it is applied to be mechanically connected to or placed in, around or against another product so that either product may perform its function.
42 However, in accordance with Article 8(3) of Regulation No 6/2002, by way of derogation from Article 8(2) of that regulation, a design serving the purpose of allowing the multiple assembly or connection of mutually interchangeable products within a modular system is to be protected, provided that it meets the requirements of novelty and of individual character laid down in Articles 5 and 6 of that regulation.
43 The referring court seeks to ascertain whether the interpretation, as it follows from the case-law of the Court, of the concept of ‘informed user’, which appears in Article 10 of Regulation No 6/2002 and is not defined by that regulation, is applicable when it comes to assessing the scope of protection attaching to Community designs falling within the scope of Article 8(3) of that regulation, or whether the level of attention expected of an informed user must, in relation to that type of design, be similar to that which may be expected of a sectoral expert.
44 According to that court, in the case of the designs covered by the latter provision, the designer’s degree of freedom is very low. It would therefore be justified to take into consideration an ‘informed user’ who is capable of examining down to the smallest detail the designs liable to be protected. Furthermore, in such a situation, the concept of ‘overall impression’ should, according to that court, include not only the visual perception, by such a user, of the appearance of those designs, but also his or her technical opinion, as a sectoral expert, with regard to their functional characteristics.
45 In that regard, it is apparent from the very wording of Article 10 of Regulation No 6/2002 that the protection conferred by a Community design extends to any design which does not produce on an ‘informed user’ a ‘different overall impression’ and that, in assessing that scope of protection, the ‘degree of freedom of the designer’ must be taken into consideration.
46 That provision does not exclude from its scope the designs referred to in Article 8(3) of that regulation, which is a provision specifically devoted to modular systems, of which toy building sets form part. Consequently, Article 10 of that regulation applies to a situation, such as that at issue in the main proceedings, in which the holder of Community designs covered by Article 8(3) brings an action for infringement against a third party in order to prohibit that third party from using designs which, according to that holder, do not produce a different overall impression on the informed user.
47 As regards, first, the ‘overall impression’ referred to in Article 10 of Regulation No 6/2002, as well as in Article 6 of that regulation, to which Article 8(3) thereof expressly refers, it must be observed that that impression consists of the informed user’s visual perception of the appearance of the product at issue resulting, in particular, from the features listed in Article 3(a) of that regulation.
48 As regards, second, the concept of ‘informed user’, which also appears in Articles 6 and 10 of Regulation No 6/2002 and must, as the Advocate General noted in point 21 of his Opinion, be interpreted in the same way for those two provisions, it is settled case-law that the scope of that concept lies somewhere between that of the average consumer, applicable in trade mark matters, who need not have any specific knowledge and who, as a rule, makes no direct comparison between the trade marks at issue, and the sectoral expert, who is an expert with detailed technical expertise. The concept of ‘informed user’ therefore refers, not to a user of average attention, but to a particularly observant one, either because of his or her personal experience or his or her extensive knowledge of the sector in question. The qualifier ‘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 or her interest in the products concerned, shows a relatively high degree of attention when he or she uses them (see, to that effect, judgments of 20 October 2011, PepsiCo v Grupo Promer Mon Graphic, C‑281/10 P, EU:C:2011:679, paragraphs 53 and 59, and of 21 September 2017, Easy Sanitary Solutions and EUIPO v Group Nivelles, C‑361/15 P and C‑405/15 P, EU:C:2017:720, paragraphs 124 and 125).
49 There is nothing in the wording or context of Regulation No 6/2002 to indicate that that concept of ‘informed user’ should be interpreted differently where the protection conferred by a Community design falls within the scope of Article 8(3) of that regulation.
50 It is true that such a user’s level of attention, which is, in any event, relatively high, is likely to vary according to the sector concerned (see, by analogy, with regard to trade mark law, judgment of 14 November 2024, Compass Banca, C‑646/22, EU:C:2024:957, paragraph 55), including in the case of designs covered by Article 8(3) of that regulation. Consequently, it cannot be ruled out that, in the latter situation, a level of attention or observance appropriate to the sector concerned should be taken into consideration. However, even in such a situation, it is not necessary to take into consideration the perception of a user who is a specialist in the field concerned, who has detailed technical expertise, like a sectoral expert, or to consider that the overall impression produced on that user should be formed primarily of a technical opinion.
51 Third, under Article 10(2) of Regulation No 6/2002, the ‘degree of freedom of the designer in developing his design’ must be taken into account in assessing, on the basis of the concepts of ‘informed user’ and ‘overall impression’ set out in paragraph 1 of that article, the scope of the protection conferred by a Community design.
52 As the Advocate General emphasised in points 36 and 37 of his Opinion, the more the designer’s freedom in developing a design is restricted, the more likely it is that minor differences between the designs at issue will be liable to produce a different overall impression on an informed user. Conversely, the greater the designer’s freedom in developing a design, the less likely it is that minor differences between the designs at issue will be liable to produce a different overall impression on an informed user. Thus, where the designer’s freedom is restricted by a high number of features of appearance of the product or of the part of the product at issue which are solely dictated by the technical function of that product or of that part of the product, the presence of minor differences between the designs at issue may be sufficient to produce a different overall impression on the informed user.
53 Like the concepts of ‘overall impression’ and ‘informed user’, recalled in paragraphs 47 and 48 of the present judgment, the concept of ‘degree of freedom of the designer in developing his design’, as interpreted in paragraph 52 of this judgment, applies in the case of infringement proceedings brought by the holder of Community designs falling within Article 8(3) of Regulation No 6/2002.
54 However, in order to give practical effect to Article 8(3) of Regulation No 6/2002, the features of appearance that allow interconnection, protected by that paragraph 3, must, unlike the features of appearance referred to in Article 8(2) of that regulation, be taken into consideration when assessing the ‘overall impression’ within the meaning of Article 10 of that regulation. Therefore, the presence, in the Community design concerned, of interconnecting components protected by Article 8(3) of that regulation may operate against a finding of a different overall impression, within the meaning of that Article 10, so that, where there are no sufficiently significant differences in the overall appearance of the designs at issue, the existence of connection points that have the same form and dimensions, for the purposes of the assembly or connection of mutually interchangeable products within a modular system, is capable of precluding such a finding.
55 That interpretation of the scope of protection in the case of a Community design covered by Article 8(3) of Regulation No 6/2002 is supported by the purpose of that regulation, which consists, inter alia, as stated in recital 7 thereof, in encouraging innovation and the development of new products.
56 In that regard, it is apparent, first, from recital 11 of that regulation that the EU legislature, after stating that the mechanical fittings of modular products may constitute an important element of the innovative characteristics of modular products and present a major marketing asset, intended, subject to compliance with the conditions of novelty and of individual character, to extend to them the protection conferred on designs by Regulation No 6/2002.
57 Second, that intention of the EU legislature, as expressed in recital 11 and Article 8(3) of that regulation, to confer increased protection on an economic operator who has created a new appearance of connection or assembly components within a modular system, did not restrict the equally important intention of that legislature, expressed in the first sentence of recital 10 of that regulation and in Article 8(1) thereof, to enable any other economic operator also to innovate by creating, in turn, a new appearance of such connection or assembly components, which do not have the same forms and dimensions in their connection points and have certain features that produce a different overall impression on the informed user.
58 In the light of all the foregoing considerations, the answer to the first question is that Article 10 of Regulation No 6/2002 must be interpreted as meaning that the scope of protection of a design under Article 8(3) of that regulation must be assessed by reference to the overall impression produced by that design on an informed user who, without being a designer or a technical expert, 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 or her interest in the products concerned, shows a relatively high level of attention when he or she uses them as components of the modular system of which they form part, and not on a user who, possessing technical knowledge similar to that which may be expected of a sectoral expert, examines the design concerned down to the smallest detail and whose overall impression is based primarily on technical considerations.
59 By its second question, the referring court asks, in essence, whether Article 89(1) of Regulation No 6/2002 must be interpreted as meaning that the concept of ‘special reasons’, within the meaning of that provision, allowing a Community design court not to make one or more of the orders referred to in that provision covers the fact that an infringement relates only to some of the pieces of a modular system, the number of which is small in relation to the total number of components of that system.
60 Article 89 of Regulation No 6/2002, relating to the sanctions to be imposed in the event of infringement or threatened infringement, lists, in paragraph 1 thereof, the types of orders which the Community design court is required to make in such cases. That provision states, however, that that court is to make such orders ‘unless there are special reasons for not doing so’.
61 The concept of ‘special reasons’, within the meaning of Article 89(1) of Regulation No 6/2002, must be interpreted uniformly and strictly in the EU legal order.
62 First, if that concept were to be interpreted differently in the various Member States, the same circumstances could give rise to prohibitions of further infringement or threatened infringement in some Member States and not in others, with the result that the protection afforded to designs would not be uniform throughout the entire area of the European Union (see, by analogy, judgment of 14 December 2006, Nokia, C‑316/05, EU:C:2006:789, paragraph 27).
63 Second, the mandatory terms in which Article 89(1) of Regulation No 6/2002 is drafted show that the concept of ‘special reasons’ entails an exception to the court’s obligation to make the orders provided for in that provision. It follows that that concept must be interpreted strictly (see, by analogy, judgment of 14 December 2006, Nokia, C‑316/05, EU:C:2006:789, paragraphs 29 and 30).
64 The Court has also held that the concept of ‘special reasons’, within the meaning of Article 89(1) of Regulation No 6/2002, relates to factual circumstances specific to a given case (judgment of 13 February 2014, H. Gautzsch Großhandel, C‑479/12, EU:C:2014:75, paragraph 48).
65 Thus, that concept relates only to exceptional situations in which, in the light of the specific features of the conduct alleged against the third party, in particular the fact that it is impossible for that third party to proceed with the acts alleged against it which have infringed or threaten to infringe the Community design, the Community design court is not required to issue an order prohibiting that third party from proceeding with such acts (see, by analogy, 22 June 2016, Nikolajeva, C‑280/15, EU:C:2016:467, paragraph 33).
66 The fact that an infringement relates only to some of the pieces of a modular system, such as, in the present case, the pieces concerned of the toy set at issue, the number of which is small in relation to the total number of components of that system, does not, as such, constitute such an exceptional situation allowing the national court not to make one or more of the orders provided for in Article 89(1) of Regulation No 6/2002.
67 In the light of those reasons, the answer to the second question is that Article 89(1) of Regulation No 6/2002 must be interpreted as meaning that the concept of ‘special reasons’, within the meaning of that provision, allowing a Community design court not to make one or more of the orders referred to in that provision does not cover the fact that an infringement relates only to some of the pieces of a modular system, the number of which is small in relation to the total number of components of that system.
68 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. 1. Article 10 of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs 2. Article 89(1) of Regulation No 6/2002