25.11.2019

EN

Official Journal of the European Union

C 399/77

(Case T-629/19)

(2019/C 399/96)

Language in which the application was lodged: Spanish

Parties

Applicant: L. Oliva Torras, SA (Manresa, Spain) (represented by: E. Sugrañes Coca, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Mecánica del Frío, SL (Cornellá de Llobregat, Spain)

Details of the proceedings before EUIPO

Holder of the design at issue: Other party to the proceedings before the Board of Appeal

Design at issue: Community design (Vehicle couplings) — Community design No 2 217 588-0004

Contested decision: Decision of the Third Board of Appeal of EUIPO of 10 July 2019 in Case R 1399/2017-3

Form of order sought

The applicant claims that the General Court should:

—With regard to the ground of invalidity: uphold the findings of the Board of Appeal on this point and allow the proceedings seeking invalidity of a Community design in respect of each of Articles 4 to 9 of the Regulation on Community designs, under ‘Requirements for protection’.

—With regard to the precedence on which the claims of lack of novelty and individual character are based: the applicant submits that the comparison conducted by the Cancellation Division and the Board of Appeal, based solely on image A (a render from the catalogue), is incorrect, and requests that the comparison be conducted taking into account all the evidence submitted and the specific circumstances of the present case.

—The substance: lack of novelty of the Community design sought. The applicant requests that the contested design be declared invalid since it is almost identical to and therefore consists in an unauthorised, practically identical imitation of the design used in trade by the applicant. Consequently, the contested design lacks the novelty required to acquire protection by means of the registration of a Community design.

—The substance: lack of individual character of the Community design sought. The applicant requests that the contested design be declared invalid on the ground of lack of individual character with respect to the designs disclosed earlier by L. Oliva Torras, S.A., bearing in mind the low degree of creative freedom allowed by the technical functionality of the part which must be mounted on a specific vehicle engine, the characteristics of an informed user and the similarities between the parts compared.

—The substance: existence of exclusions to the protection of a Community design under Article 8 of the Regulation on Community designs. The applicant requests that the contested design be declared invalid on the ground that it is subject to the prohibition laid down in Article 8(1) and (2), as the appearance of the design is dictated solely by its technical function, and that it be declared invalid on the ground that it is subject to the absolute prohibition under Article 4 of the Regulation on Community designs since it constitutes a component part of a complex product.

—The substance: conflict of the Community design with Article 9 of the Regulation on Community designs. The applicant requests that the decision of the Board of Appeal be upheld on that point.

—In accordance with Article 134(1) of the Rules of Procedure of the General Court, under ‘General rules as to allocation of costs’, the applicant requests that the unsuccessful party be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

—In accordance with Article 68 of the Rules of Procedure of the General Court, the applicant requests that the case is joined with Case T-100/19, the oral part of which has been requested by the applicant and is awaiting decision. In accordance with Article 68, two or more cases concerning the same subject matter may at any time, either of the General Court’s own motion or on application by a main party, be joined, on account of the connection between them, for the purposes, alternatively or cumulatively, of the written or oral part of the procedure or of the decision which closes the proceedings.

Plea in law

Infringement of Articles 4 to 9 and 61 of Council Regulation (EC) No 6/2002.