Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE GENERAL COURT (Fifth Chamber)

8 July 2020 (*)

(Community design — Invalidity proceedings — Registered Community design representing a pneumatic power tool — Earlier design — Proof of disclosure — Article 7 of Regulation (EC) No 6/2002 — Ground for invalidity — Individual character — Different overall impression — Article 6(1)(b) of Regulation No 6/2002)

In Case T‑748/18,

Glimarpol sp. z o.o., established in Bytom (Poland), represented by M. Kondrat, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by A. Folliard-Monguiral and H. O’Neill, acting as Agents,

defendant,

supported by

Metar sp. z o.o., established in Gliwice (Poland), represented by R. Skubisz and M. Mazurek, lawyers,

intervener,

ACTION brought against the decision of the Third Board of Appeal of EUIPO of 4 October 2018 (Case R 1615/2017-3), relating to invalidity proceedings between Metar and Glimarpol,

THE GENERAL COURT (Fifth Chamber),

composed of D. Spielmann (Rapporteur), President, U. Öberg and R. Mastroianni, Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Court Registry on 21 December 2018,

having regard to the response lodged at the Court Registry on 11 March 2019,

having regard to the order of 19 June 2019 rejecting Metar’s application for leave to intervene pursuant to Article 173(1) of the Rules of Procedure of the General Court,

having regard to the order of 18 September 2019 granting Metar leave to intervene in support of the form of order sought by EUIPO under Article 143 of the Rules of Procedure,

having regard to the intervener’s letter of 20 October 2019 in which it waived its right to lodge a statement in intervention,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

gives the following

Judgment

 Background to the dispute

1        On 25 October 2012, the applicant, Glimarpol Sp. z o.o., filed an application for registration of a Community design with the European Union Intellectual Property Office (EUIPO), pursuant to Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1).

2        The design in respect of which registration was sought is represented as follows:

3        The products to which the contested design is intended to be applied are in Classes 08-01 and 08-05 of the Locarno Agreement of 8 October 1968 Establishing an International Classification for Industrial Designs, as amended, and correspond to the following description: ‘hammer drills’ and ‘pneumatic power tools’.

4        The contested design was registered on 25 October 2012 as a Community design under No 2 125 435-0001 and published in Community Designs Bulletin No 215/2005 of 9 November 2012.

5        On 16 May 2016, the intervener, Metar sp. z o.o., filed an application for a declaration of invalidity with respect to the contested design pursuant to Article 52 of Regulation No 6/2002.

6        The ground relied upon in support of the application for a declaration of invalidity was that set out in Article 25(1)(b) of Regulation No 6/2002. The intervener argued that the contested design lacked novelty and individual character within the meaning of Articles 5 and 6 of that regulation and submitted, in support of its claims, a number of documents purporting to establish the disclosure to the public of an earlier design, namely, inter alia:

–        a copy of the instruction manual, dated 2 August 2010, for a pneumatic rock drill which, it claimed, was identical to that concerned by the contested design; the images relating thereto are reproduced below:

–        a catalogue containing images of an accessory, identified by reference number FT 160A, on which rock drills under the names 7655 D and YT‑24 could be mounted in order to be supported when used in drilling operations; the image relating thereto is reproduced below:

–        a copy of the instruction manual, dated 1 September 2009, for a rock drill identified under the name YT‑24 (‘rock drill YT‑24’), in which the earlier design was to be included; the images relating thereto are reproduced below:

–        a catalogue containing images of an accessory, identified by reference number FT 140B, on which rock drill YT‑24 could be mounted; the image relating thereto is reproduced below:

–        a screenshot taken from the website for the manufacturer of the rock drill concerned by the contested design.

7        On 22 May 2017, the Invalidity Division declared the contested design invalid on the ground that it lacked individual character within the meaning of Article 6 of Regulation No 6/2002.

8        On 22 July 2017, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 55 to 60 of Regulation No 6/2002, against the Invalidity Division’s decision.

9        By decision of 4 October 2018 (‘the contested decision’), the Third Board of Appeal of EUIPO dismissed the appeal. In particular, the Board of Appeal found that the disclosure of the earlier design was not disputed, since the applicant had acknowledged in a letter of 9 November 2016 that that design had been introduced on the European market in 2009. The Board of Appeal also stated that the informed user of the rock hammer was a miner or a mining engineer and that the designer’s freedom was of an average degree. Lastly, the Board of Appeal concluded that the Invalidity Division had rightly found that the contested design produced the same overall impression as the earlier design, with the result that it lacked the individual character required by Article 6(1) of Regulation No 6/2002.

 Forms of order sought

10      The applicant claims that the Court should:

–        annul the contested decision and refer the case back to EUIPO for reconsideration;

–        in the alternative, alter the contested decision by stating that there are no grounds for declaring the design invalid;

–        order EUIPO to pay the costs.

11      EUIPO contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

12      In support of the action, the applicant relies on two pleas in law, alleging in essence (i) infringement of Article 7(1) of Regulation No 6/2002, in that the Board of Appeal made an error of assessment in finding that the evidence submitted by the intervener established that the earlier design had been disclosed in accordance with that provision, and (ii) infringement of Article 6 of that regulation, in that the Board of Appeal decided that the contested design lacked individual character.

13      EUIPO disputes the applicant’s arguments.

 The first plea: infringement of Article 7(1) of Regulation No 6/2002

14      The applicant claims that the Board of Appeal erred in finding that the earlier design had been disclosed in 2009 within the meaning of Article 7(1) of Regulation No 6/2002. In particular, it maintains that the instruction manual for that design was non-commercial and not intended for the general public. The applicant observes that the operating manual was disclosed only in order to obtain a certificate of conformity or for administrative purposes and that, accordingly, disclosure took place under explicit or implicit circumstances of confidentiality, within the meaning of Article 7(1) of Regulation No 6/2002. The applicant adds that the intervener failed to provide solid and objective evidence to prove effective and sufficient disclosure of the earlier design.

15      EUIPO contends that the present plea is inadmissible for the purposes of Article 188 of the Rules of Procedure of the General Court, as the applicant did not dispute the disclosure of the earlier design before either the Invalidity Division or the Board of Appeal. In that connection, EUIPO argues that the applicant explicitly conceded before the Invalidity Division that rock drill YT‑24 had been introduced on the European market in 2009 and that, before the Board of Appeal, the applicant’s arguments focused on the differences between the contested design and the earlier design.

 Admissibility

16      It is clear from the case-law that, having regard to the wording of Article 61 of Regulation No 6/2002, the Court’s review of the legality of a decision of the Board of Appeal must relate to the issues of law raised before the Board of Appeal. Therefore, it is not the Court’s function to examine new pleas introduced before it or to review the facts in the light of evidence adduced for the first time before it. To allow the examination of those new pleas and to admit such evidence would be contrary to Article 188 of the Rules of Procedure, according to which the pleadings of the parties in proceedings before the Court may not change the subject matter of the proceedings before the Board of Appeal (see, to that effect, judgment of 23 October 2013, Viejo Valle v OHIM — Établissements Coquet (Cup and saucer with grooves and soup dish with grooves), T‑566/11 and T‑567/11, EU:T:2013:549, paragraph 63).

17      In the present case, the Board of Appeal considered that the disclosure of the earlier design was undisputed, given that the intervener claimed that the applicant had been selling the rock drill concerned by the earlier design on the European market since 2009, and the latter confirmed that assertion. It follows that the Board of Appeal examined the question concerning the disclosure of the earlier design and that, accordingly, that question formed part of the factual and legal background to the dispute brought before it. In that connection, it should be noted that, in its application, the applicant disputes the Board of Appeal’s finding on that question, by claiming that the evidence on which the latter had based its decision was not sufficient to find that the earlier design had indeed been made available.

18      Consequently, the applicant is entitled to challenge the Board of Appeal’s assessment with regard to the evidence of the disclosure of the earlier mark before the Court, and the present plea must be declared admissible.

 Substance

19      According to case-law, a design is deemed to have been made available once the party claiming disclosure has proven the events constituting disclosure. In order to refute that presumption, the party challenging the disclosure must establish to the requisite legal standard that the circumstances of the case could reasonably prevent those facts from becoming known in the normal course of business to the circles specialised in the sector concerned (judgment of 21 May 2015, Senz Technologies v OHIM — Impliva (Umbrellas), T‑22/13 and T‑23/13, EU:T:2015:310, paragraph 26).

20      Therefore, in order to establish that an earlier design has been disclosed, it is necessary to carry out a two-stage analysis, namely examining, in the first place, whether the evidence submitted in the application for a declaration of invalidity shows (i) events constituting disclosure of a design, and (ii) that that disclosure occurred earlier than the date of filing or priority of the contested design, and, in the second place, where the holder of the contested design has claimed the contrary, whether those events could reasonably have become known in the normal course of business to the specialist circles in the sector operating within the European Union, failing which any disclosure will be considered to have no effects and will not be taken into account (judgment of 13 June 2019, Visi/one v EUIPO — EasyFix (Door hanger for vehicles), T‑74/18, EU:T:2019:417, paragraph 24).

21      Commission Regulation (EC) No 2245/2002 of 21 October 2002 implementing Regulation No 6/2002 (OJ 2002 L 341, p. 28) is silent as to the evidence of disclosure of the earlier design that is to be provided by the applicant for a declaration of invalidity. More specifically, Article 28(1)(b)(v) of Regulation No 2245/2002 merely provides that, where the ground for the application for the declaration of invalidity is, inter alia, that the Community design for which protection is sought is devoid of individual character, the application must contain the indication and the reproduction of the earlier design that could preclude the Community design for which protection is sought being regarded as having individual character, as well as documents proving prior disclosure of the earlier design. The applicant for the declaration of invalidity is therefore free to choose the evidence he or she considers useful to submit to EUIPO in support of his or her application for a declaration of invalidity (judgment of 17 May 2018, Basil v EUIPO — Artex (Bicycle baskets), T‑760/16, EU:T:2018:277, paragraph 41 and the case-law cited).

22      Disclosure of an earlier design cannot, however, be proven by means of probabilities or suppositions, but has to be demonstrated by solid and objective evidence of actual disclosure of the earlier design on the market. In addition, the items of evidence adduced by the applicant for the declaration of invalidity must be assessed in relation to each other. Although some of that evidence may be insufficient in itself to prove disclosure of an earlier design, when combined or read in conjunction with other documents or information, it may nevertheless contribute to establishing disclosure. Finally, in order to assess the evidential value of a document, it is necessary to verify whether the information which that document contains is plausible and accurate. It is necessary to take account of, inter alia, the origin of the document, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, the document appears to be sound and reliable (judgment of 17 May 2018, Bicycle baskets, T‑760/16, EU:T:2018:277, paragraph 42 and the case-law cited).

23      In the present case, the Board of Appeal held that disclosure of the earlier design had been established, having found that that disclosure was not disputed, since the applicant had acknowledged in a letter dated 9 November 2016 that rock drill YT‑24 had been introduced on the European market in 2009.

24      It should be noted that the applicant has failed to provide any evidence capable of establishing that, in the normal course of business, the disclosure of the earlier design could not reasonably become known to the circles specialised in the sector concerned operating within the European Union.

25      The applicant submits in that respect that the earlier design cannot be regarded as having been made available to the public, given that it had been disclosed under explicit or implicit circumstances of confidentiality. In particular, it claims that the intervener disclosed the earlier design in order to obtain a certificate of conformity or for administrative purposes. However, that claim is not supported by evidence. It must therefore be rejected.

26      Furthermore, it should be observed that, before the Invalidity Division, the intervener produced a copy of the instruction manual and a parts catalogue relating to rock drill YT‑24 and its hydraulic support under the name FT 140B. Each page of that document, drafted in Polish and dated 1 September 2009, is stamped and signed by the applicant’s representative. That item of evidence confirms the absence of any error of assessment on the part of the Board of Appeal as to the disclosure of the earlier design. The effective distribution by the applicant of the copy of the instruction manual for rock drill YT‑24 may be inferred from the fact that the intervener, as a member of the circles concerned, had in its possession a copy of that catalogue that was already stamped and signed by the applicant’s representative.

27      For the sake of completeness, it should be noted that the present plea contradicts the applicant’s explicit admission before the adjudicating bodies of EUIPO as to the disclosure of the earlier design in respect of rock drill YT‑24. More specifically, before the Invalidity Division of EUIPO, the applicant expressly stated that model YT‑24 had been sold on the territory of the European Union since 2009. Moreover, before the Board of Appeal, it also claimed the following: ‘[the Invalidity Division] ignored the Holder [of the contested design]’s statements that both pneumatic drills [namely the drills under the names 7655 and YT‑24] were disclosed but that they differ considerably from the [contested design]’.

28      On the basis of that evidence, and without it being necessary to examine EUIPO’s plea alleging a lack of clarity in the applicant’s arguments, it is appropriate to conclude that the Board of Appeal rightly found that the earlier design had been made available within the meaning of Article 7 of Regulation No 6/2002

29      In the light of the foregoing, the first plea put forward by the applicant must be dismissed as unfounded.

 The second plea: infringement of Article 6 of Regulation No 6/2002

30      The applicant claims, in essence, that the Board of Appeal wrongly found that the contested design lacked individual character, in breach of Article 6 of Regulation No 6/2002.

31      EUIPO disputes the applicant’s arguments.

32      It should be borne in mind that Article 25(1)(b) of Regulation No 6/2002 provides that a Community design may be declared invalid only in the cases referred to under subparagraphs (a) to (g) of that paragraph and, specifically the case referred to in subparagraph (b), that is to say if it does not fulfil the conditions set out in Articles 4 to 9 of that regulation.

33      Among the requirements for protection of a design by a Community design laid down in Articles 4 to 9 of Regulation No 6/2002 is the requirement that the design has individual character, as set out in Article 6 of that regulation. Article 6(1)(b) of Regulation No 6/2002 provides, inter alia, that a registered Community design is 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 before the date of filing the application for registration. Moreover, Article 6(2) of Regulation No 6/2002 states that, in assessing the individual character of a design, the degree of freedom of the designer in developing that design is taken into consideration.

34      According to the case-law, the assessment of the individual character of a Community design is the result, in essence, of a four-stage examination. That examination consists in determining, first, the sector to which the products in which the design is intended to be incorporated or to which it is intended to be applied belong; secondly, the informed user of those products in accordance with their purpose and, with reference to that informed user, the degree of awareness of the prior art and the level of attention in the comparison, direct if possible, of the designs; thirdly, the designer’s degree of freedom in developing his design; and, fourthly, the outcome of the comparison of the designs at issue, taking into account the sector in question, the designer’s degree of freedom and the overall impressions produced on the informed user by the contested design and by any earlier design which has been made available to the public, taken individually (see judgment of 13 June 2019, Door hanger for vehicles, T‑74/18, EU:T:2019:417, paragraph 66 and the case-law cited).

35      It is thus in the light of the considerations set out in paragraphs 32 to 34 above and in relation to the earlier design, the disclosure of which has been established, that it is necessary to determine whether the contested design lacks individual character within the meaning of Article 6 of Regulation No 6/2002.

36      It is common ground that the sector concerned by the designs at issue is that of hammer drills and pneumatic power tools. It is therefore appropriate to examine, in turn, the informed user, the degree of freedom of the designer and the comparison of the overall impressions produced by the designs at issue.

 The informed user

37      In paragraphs 18 and 19 of the contested decision, the Board of Appeal found that the product concerned by the contested design was a tool used by professionals, such as miners, which could weigh up to 25 kilogrammes and was generally mounted on a support similar to that illustrated in the views corresponding to the products in which the designs at issue were incorporated. On the basis of that finding, the Board of Appeal concluded that the informed user of that product was a miner or mining engineer who was familiar with rock drills and informed about their essential characteristics.

38      It should be observed that that definition is not in itself disputed by the applicant.

39      Furthermore, in so far as the applicant’s argument relating to an informed user’s degree of knowledge and level of attention could be understood as concerning the definition of the latter, it should be noted that, even if the relevant person has a certain degree of knowledge as regards the different designs that exist in the sector concerned and displays a relatively high level of attention and particular vigilance when using them, that user is also not an expert or a specialist, such as a person skilled in the art, who is capable of observing minor differences that may exist between the designs at issue (see, to that effect, judgment of 20 October 2011, PepsiCo v Grupo Promer Mon Graphic, C‑281/10 P, EU:C:2011:679, paragraph 59).

40      Inasmuch as the applicant’s intention, through that argument, is to claim that the informed user’s allegedly high level of attention would have an effect on the overall impression produced on that user, that argument will be examined in the assessment of the overall impressions produced following the comparison of the contested design with the earlier design.

 The designer’s degree of freedom

41      It should be noted that the Board of Appeal stated, in paragraph 23 of the contested decision, that the Invalidity Division had declared that the designer’s degree of freedom was ‘not high’ but that he had ‘some freedom to introduce innovations in the appearance of the product’. Moreover, in paragraph 24 of that decision, the Board of Appeal found that the Invalidity Division’s statements were akin to saying that the designer’s freedom was of an average degree. It observed that, according to the Invalidity Division, pneumatic rock drills must be sturdy and capable of being operated by one person. The Board added that these drills must have a handle, a suitable housing for the drill bits, a locking device for these bits, a sleeve allowing a connection to a hose of compressed air, a muffler and a connection device for the support. The Board of Appeal concluded that those technical requirements allowed the designer sufficient freedom to vary the appearance of the product.

42      The applicant claims that ‘it is true that, as it was noted by the Boards in paragraph 23, citing statements of the Invalidity Division, the designer in the case at hand has some freedom to introduce innovations in the appearance of the product’. It follows that the applicant has, in essence, confirmed the Board of Appeal’s finding that the designer’s freedom was of an average degree in the present case.

 The overall impression

43      The applicant claims that the Board of Appeal erred in its assessment by finding that the overall impression produced by the contested design on the informed user was no different to that produced by the earlier design.

44      EUIPO disputes the applicant’s arguments.

45      It is settled case-law that the individual character of a design results from an overall impression of difference or lack of ‘déjà vu’, from the point of view of an informed user, in relation to any previous presence in the design corpus, without taking account of any differences that are insufficiently significant to affect that overall impression, even though they may be more than insignificant details, but taking account of differences that are sufficiently marked so as to produce dissimilar overall impressions (see judgment of 16 February 2017, Antrax It v EUIPO — Vasco Group (Thermosiphons for radiators), T‑828/14 and T‑829/14, EU:T:2017:87, paragraph 53 and the case-law cited).

46      The assessment as to whether a design has individual character 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, and not by a combination of features taken in isolation and drawn from a number of earlier designs (see, to that effect, judgment of 19 June 2014, Karen Millen Fashions, C‑345/13, EU:C:2014:2013, paragraphs 25 and 35).

47      The comparison of the overall impressions produced by the designs must be synthetic and may not be limited to an analytic comparison of a list of similarities and differences. The comparison must be based on the features disclosed in the contested design and relate solely to the elements actually protected, without taking account of characteristics, and particularly technical characteristics, excluded from the protection. That comparison must relate, in principle, to designs as registered, without the applicant for a declaration of invalidity being required to produce a graphic representation of the design relied upon, comparable to the representation set out in the application for registration of the contested design (see judgment of 13 June 2019, Door hanger for vehicles, T‑74/18, EU:T:2019:417, paragraph 84 and the case-law cited).

48      In the present case, the Board of Appeal upheld the Invalidity Division’s finding that the contested design and the earlier design produced the same overall impression and that certain differences in their respective appearances were not capable of altering the overall impression.

49      The contested design is intended to be incorporated into pneumatic rock drills which comprise the same components with the same characteristics as those which make up the rock drills concerned by the earlier design, namely the body, the housing of the drill, the muffler and the sleeve to which the air hose is connected and the support. The informed user looking at the designs at issue will easily recognise the same cylindrical shape of the body of the tools, each comprising a circular muffler, fitted in the same place on the body of the tools, namely on the other side of the support socket. Furthermore, the other main parts of the tools, namely the handle, the housing of the drill, the support and the sleeve to which the air hose is connected are in almost identical positions on the designs at issue and have similar shapes. Those shared characteristics contribute to producing an impression of ‘déjà vu’ from the point of view of the informed user of the contested design in relation to the earlier design.

50      The arguments relied on by the applicant in support of its claim that the contested design does not produce on the informed user the same overall impression as that produced by the earlier design do not call into question that conclusion.

51      In the first place, the applicant claims that the Board of Appeal failed to take into account the support that can be seen in the contested design, with the effect that the Board failed to compare the designs at issue globally.

52      That argument cannot succeed.

53      It should be noted that the instruction manual for rock drill YT‑24, dated 9 September 2009, shows, on its first page, the body of the tool, to which a cylindrical support is attached. The illustration of the support is not shown in full because it is cut off by the edge of the image. Furthermore, in other images included in the file submitted to the Invalidity Division, the support adapted to the earlier design is visible in its entirety, under the name FT 140B, without it being attached to the rock drill itself. Consequently, the Board of Appeal did not have at its disposal a complete representation of the earlier design including both the rock drill and a fully visible support.

54      As recalled in paragraph 46 above, in order for a design to be considered to have individual character, the overall impression which that design produces on the informed user must be different from that produced on such a user not by a combination of features taken in isolation and drawn from a number of earlier designs, but by one or more earlier designs, taken individually from among all the designs which have been made available to the public previously.

55      It follows that the Board of Appeal was not required to carry out an examination in isolation of the support under the name FT 140B or to combine the earlier design as represented on the first page of the instruction manual for rock drill YT‑24 with the full image of that support.

56      It is true that the contested decision does not make explicit reference to the support for the rock drills at issue. However, that cannot give rise to an error of assessment on the part of the Board of Appeal as to the overall impression produced by the designs at issue. It is evident that the role of the support is secondary and ancillary in relation to the tool in itself, namely the rock drill. Accordingly, the support can have only little influence on the overall impression produced by the designs at issue on the informed user.

57      Furthermore, as is apparent from the truncated image of rock drill YT‑24 on the first page of the instruction manual referred to in paragraph 53 above, the informed user can already recognise therein a significant part of the support, which has the same cylindrical shape that characterises the support of the contested design and, in both cases, a circular element, similar to a handle. Lastly, as is clear from the same image, both supports are attached at the same place on the respective rock drills and have an identical attachment point. The synergy of those fundamental characteristics produces a similar overall impression of the two supports to be compared,

58      In any event, in accordance with the case-law cited in paragraph 47 above, for the purposes of reaching a conclusion as to the individual character of the contested design, the Board of Appeal carried out a synthetic comparison of the overall impressions produced by the designs at issue without confining itself to an analytic comparison of a list of similarities and differences. It first considered that the comparison of the pneumatic tools as a whole produced the same overall impression on the informed user, before examining whether the differences relied upon by the applicant could serve in differentiating them. In other words, having found that, as a whole, the rock drills concerned produced the same impression of ‘déjà vu’, the Board of Appeal examined only those aspects capable of differentiating those designs.

59      In the light of the foregoing, the applicant’s argument alleging failure on the part of the Board of Appeal to refer to the support on which the rock drill concerned by the earlier design rests cannot constitute an error of assessment and must therefore be rejected.

60      In the second place, the applicant claims that the Board of Appeal failed to take account of a number of differences between the contested design and the earlier design. It is argued, first, that the contested design has a rubber spring handle, while the earlier design has a square steel handle. Second, the spring in the contested design is flat, while that in the earlier design is round. Third, the pusher leg is in the right-hand side in the contested design, while it is on the left-hand side in the earlier design, producing a ‘mirror effect’. Lastly, there is only one tube between the two springs in the contested design while there are two tubes between the springs in the earlier design.

61      The Court finds that the technical differences set out by the applicant, namely the shape of the spring, the type of handle, the position of the pusher leg or the number of tubes between the springs in the designs at issue, are not capable of having an effect on the overall impression produced by the designs at issue, which is dictated by the appearance of the rock drills as a whole, namely the body, the housing of the drill, the muffler and the sleeve to which the air hose is connected.

62      In that connection, as opposed to the arguments raised by the applicant, despite the relatively high level of attention, the informed user does not observe minor differences that may exist between the designs at issue (judgment of 13 June 2019, Door hanger for vehicles, T‑74/18, EU:T:2019:417, paragraph 90).

63      In particular, the differences between the handles in the designs at issue are small, since both are rectangular in shape and approximately the same size. Furthermore, the alleged difference in materials used for the handle does not appear in their graphic representations.

64      Lastly, it must be noted that the Board of Appeal’s findings relating to the colour of the rock drills concerned by the designs at issue, together with the fact that they bear different names, are not disputed by the applicant.

65      In the light of the foregoing, it must be held that the applicant is wrong to claim that the differences raised were sufficiently significant as to lead to the designs at issue producing a different overall impression on the informed user, even taking into account the designer’s average degree of freedom determined by the technical requirements and functionalities of a rock drill. Those differences are therefore not such as to confer individual character on the contested design, as the Board of Appeal rightly found.

66      Consequently, whilst taking into account in its assessment the differences relied upon by the applicant, the Board of Appeal did not err in finding that the designs at issue produced the same overall impression on the informed user and that the contested design lacked individual character, within the meaning of Article 6(1)(b) of Regulation No 6/2002.

67      In the light of the foregoing considerations, the second plea must be rejected as unfounded and, accordingly, the action dismissed in its entirety.

 Costs

68      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by EUIPO.

69      In accordance with Article 138(3) of the Rules of Procedure, the intervener must bear its own costs.

On those grounds,

THE GENERAL COURT (Fifth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Glimarpol sp. z o.o. to pay the costs;

3.      Orders Metar sp. z o.o. to bear its own costs.

Delivered in open court in Luxembourg on 8 July 2020.

E. Coulon S. Papasavvas

*      Language of the case: English.

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