12.10.2015

Official Journal of the European Union

C 337/6

(Case C-405/15 P)

(2015/C 337/08)

Language of the case: Dutch

Parties

Appellant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: S. Bonne and A. Folliard-Monguiral, acting as Agents)

Other parties to the proceedings: Group Nivelles NV and Easy Sanitary Solutions BV

Form of order sought

OHIM claims that the Court should:

—set aside the judgment under appeal;

—order the applicant and the intervener before the General Court to pay the costs incurred by OHIM.

Grounds of appeal and main arguments

The General Court infringed Article 63(1) of [Regulation No 6/2002] (1) in holding that the older design, relied on in support of the application for a declaration of invalidity, is the ‘whole of the drainage device for liquid waste available from the company Blücher’. Group Nivelles relied only on the cover plate made available to the public both by Blücher and by other companies, irrespective of the shape of the collector;

The General Court infringed Article 25(1)(b) of [Regulation No 6/2002], read in conjunction with Article 5 thereof, in holding that OHIM was required to compare the contested Community design with an earlier design resulting from the combination of two separate components, disclosed in various documents. According to the case-law of the Court of Justice applicable to Article 5 of [Regulation No 6/2002], the contested design may not be compared with ‘earlier individualised and defined designs, as opposed to an amalgam of specific features or parts of earlier designs’. The appearance of a product as assembled can sometimes be deduced from the appearance of its constituent parts, but that overall appearance remains hypothetical or, at any rate, subject to significant approximations. The concept of identity between two designs, specific to Article 5 of [Regulation No 6/2002], precludes a comparative analysis based on hypotheses or approximations;

The General Court infringed Article 25(1)(b) of [Regulation No 6/2002], read in conjunction with Articles 6 and 7(1) thereof, in taking the view that, in the event that the compared designs are incorporated into products which differ in nature or in purpose, that difference may mean that it is impossible for the relevant informed user to recognise the earlier design. Article 7 of [Regulation No 6/2002] contains a legal fiction by which every ‘disclosed’ design is assumed to be known both to the professional public of the sector concerned by the earlier design and to the public of informed users of the type of product concerned by the contested design. Once the earlier design’s disclosure is established, it has to be assumed that the relevant informed user has knowledge both of the earlier design and of its methods of use, as follow from the evidence and arguments advanced by the parties.

Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1).

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