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

JUDGMENT OF THE GENERAL COURT (Fifth Chamber)

2 March 2022 (*)

(Community design – Invalidity proceedings – Registered Community design representing an item of furniture – Ground for invalidity – No individual character – Article 6(1)(b) of Regulation (EC) No 6/2002 – Disclosure of the earlier design – Article 7(1) of Regulation No 6/2002 – Decision adopted following the annulment by the General Court of an earlier decision – Res judicata)

In Case T‑1/21,

Fabryki Mebli “Forte” S.A., established in Ostrów Mazowiecka (Poland), represented by H. Basiński, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by J. Ivanauskas, acting as Agent,

defendant,

the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being

Bog-Fran sp. z o.o. sp.k., established in Warsaw (Poland), represented by M. Mikosza and E. Guissart, lawyers,

ACTION brought against the decision of the Third Board of Appeal of EUIPO of 28 October 2020 (Case R 595/2020-3), relating to invalidity proceedings between Bog-Fran and Fabryki Mebli “Forte”,

THE GENERAL COURT (Fifth Chamber),

composed of D. Spielmann (Rapporteur), President, U. Öberg and M. Brkan, Judges,

Registrar: A. Juhász-Tóth, Administrator,

having regard to the application lodged at the Court Registry on 4 January 2021,

having regard to the response of EUIPO lodged at the Court Registry on 9 March 2021,

having regard to the response of the intervener lodged at the Court Registry on 30 March 2021,

further to the hearing on 9 November 2021,

gives the following

Judgment

 Background to the dispute

1        On 17 September 2013, the applicant, Fabryki Mebli “Forte” S.A., filed 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), an application for registration of a Community design which is represented as follows (‘the contested design’):

2        The goods to which the contested design is intended to be applied are in Class 6 of the Locarno Agreement Establishing an International Classification for Industrial Designs of 8 October 1968, as amended, and correspond to the following description: ‘Furniture’.

3        The contested design was registered as Community design under the number 001384002-0034 on 17 September 2013 and published in Community Designs Bulletin No 222/2013 of 21 November 2013.

4        On 14 March 2016, the intervener, Bog-Fran sp. z o.o. sp.k., filed an application for a declaration of invalidity of the contested design pursuant to Article 52 of Regulation No 6/2002.

5        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.

6        The intervener submitted that the contested design was not new and that it lacked individual character for the purposes of Article 4 of Regulation No 6/2002, read in conjunction with Articles 5 and 6 of that regulation.

7        In support of its application for a declaration of invalidity, the intervener submitted the following documents:

–        an extract from a catalogue entitled ‘NABYTKU – Novinka 2008 – WHITE’ containing the following representations of an item of furniture named ‘skrin 2D WH9’ to which the earlier design had been applied:

–        an invoice, in Czech, dated 14 August 2008 relating to the printing of 25 000 copies of the catalogue referred to above;

–        three invoices, dated 14 August, 4 November and 28 November 2008 respectively, relating to sales of furniture to A JE TO CZ, s.r.o., with confirmation of the receipt of the goods referred to.

8        By decision of 21 December 2017, the Invalidity Division upheld the application for a declaration of invalidity, finding that the contested design did not have the individual character required by Article 6 of Regulation No 6/2002.

9        On 6 February 2018, the applicant filed a notice of appeal, pursuant to Articles 55 to 60 of Regulation No 6/2002, against the decision of the Invalidity Division.

10      By decision of 14 January 2019, the Third Board of Appeal of EUIPO upheld the appeal and annulled the Invalidity Division’s decision, on the ground that the earlier design had not been made available to the public in accordance with Article 7(1) of Regulation No 6/2002.

11      By application lodged at the Court Registry on 14 March 2019, the intervener brought an action against the decision of 14 January 2019, registered as Case T‑159/19.

12      By judgment of 27 February 2020, Bog-Fran v EUIPO – Fabryki Mebli ‘Forte’ (Furniture) (T‑159/19, not published, EU:T:2020:77; ‘the annulling judgment’), the Court annulled the decision of the Third Board of Appeal of 14 January 2019, on the ground that that board had wrongly considered that the intervener, the invalidity applicant, had not demonstrated disclosure of the earlier design within the meaning of Article 7(1) of Regulation No 6/2002. The evidence produced before it proved events constituting disclosure of that design. Therefore, in view of that evidence, it was for the Board of Appeal to presume that disclosure, before, if appropriate, examining the applicant’s arguments, the holder of the contested design, alleging the lack of knowledge, on the part of the circles specialised in the sector concerned, of the events constituting the disclosure at issue.

13      By application lodged at the Registry of the Court of Justice on 28 April 2020, the applicant brought an appeal against the annulling judgment, registered as Case C‑183/20 P.

14      By order of 16 July 2020, Fabryki Mebli “Forte” v EUIPO (C‑183/20 P, not published, EU:C:2020:562), the Court did not allow the appeal to proceed.

15      By decision of 28 October 2020 (‘the contested decision’), the Third Board of Appeal, to which the case had been remitted, dismissed the appeal against the decision of the Cancellation Division. In particular, as regards the disclosure to the public of the earlier design within the meaning of Article 7(1) of Regulation No 6/2002, after having recalled the considerations set out by the Court relating to the presumption of disclosure of the earlier design, it found that the applicant had not established to the requisite legal standard that the events constituting disclosure could not reasonably have become known to the circles specialised in the sector concerned and concluded that the earlier design had been made available to the public. As regards, next, the individual character of the contested design within the meaning of Article 6(1) of Regulation No 6/2002, the Board of Appeal concluded that it was lacking. In that regard, first, it recalled that the designs at issue represented wardrobes and that, in that area, the designer’s degree of freedom was not limited. Secondly, it defined the informed user and considered that, as a result of his or her interest in furniture, that user showed a relatively high degree of attention. Thirdly, after examining the similarities and differences between the designs at issue, it found that there were minor differences between them which could not be sufficient to produce different overall impressions on the informed user.

 Forms of order sought

16      The applicant claims, in essence, that the Court should:

–        annul the contested decision;

–        order EUIPO and the intervener to pay the costs relating to the proceedings before the Court and before the Board of Appeal.

17      EUIPO contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

18      The intervener contends that the Court should:

–        dismiss the action and grant the application for a declaration of invalidity;

–        order the applicant to pay the costs.

 Law

19      In support of its action, the applicant raises two pleas in law, the first alleging infringement of Article 7(1) of Regulation No 6/2002, in that the Board of Appeal wrongly held that the earlier design had been disclosed within the meaning of that provision, the second alleging infringement of Article 6(1)(b) of that regulation, in that the Board of Appeal wrongly concluded that the contested design lacked individual character.

 The first plea in law, alleging infringement of Article 7(1) of Regulation No 6/2002

20      In support of its first plea in law, the applicant raises three complaints, by which it criticises the Board of Appeal for having infringed Article 7(1) of Regulation No 6/2002 by, first, wrongly finding that the intervener had established the events constituting disclosure of the earlier design, secondly, incorrectly dividing the burden of proving knowledge of that disclosure by the specialist circles in the sector concerned and, thirdly, holding that those circles could reasonably have had knowledge of the disclosure of the earlier design.

21      Article 7(1) of Regulation No 6/2002 provides that, for the purpose of applying Articles 5 and 6 of that regulation, a design is to be deemed to have been made available to the public if it has been published following registration or otherwise, or exhibited, used in trade or otherwise disclosed, before the date of filing of the application for registration, except where these events could not reasonably have become known in the normal course of business to the circles specialised in the sector concerned, operating within the European Union. The design is not, however, to be deemed to have been made available to the public for the sole reason that it has been disclosed to a third person under explicit or implicit conditions of confidentiality.

 The events constituting disclosure of the earlier design

22      By its first complaint, the applicant submits that the Board of Appeal wrongly found that the intervener had proved the veracity of the events constituting disclosure of the earlier design. In that regard, it disputes the reliability and authenticity of the evidence produced by the intervener in support of its application for a declaration of invalidity, described in paragraph 7 above. It recalls having claimed in the course of the proceedings before EUIPO that it consisted of copies and not original documents and submits that it originated solely from the intervener and not from an ‘impartial and objective source’. It also maintains that the manner in which those documents came into being has not been proved and that no indication was provided as to the addressee of the catalogue in question, either as to the date on which that catalogue was prepared or as to the persons to whom it was submitted. It adds that the invoices confirming the receipt of the goods bear no legible signatures and that the circumstance that the addressee of those invoices is presented as a wholesaler of the intervener casts doubt on the fact that the sales of products evidenced by those invoices are a commercial transaction which has had the effect of making the earlier design public.

23      In addition, by document lodged at the Court Registry on 5 November 2021, the applicant disputed the authenticity of the invoice dated 14 August 2008 relating to the printing of the catalogue referred to in paragraph 7 above, on the ground that the mention of the place at which the printing house was seated was incorrect. The invoice in question indicates an address which is that at which the printing house has been seated only since 2010 and which, therefore, could not reasonably have been entered on an invoice, or even known, from 2008. At the hearing on 9 November 2021, the applicant requested the Court, on the basis of those allegations, to set aside the findings relating to the authenticity of the evidence at issue, set out in the annulling judgment.

24      EUIPO and the intervener dispute, in addition to the merits of the first complaint, the admissibility of that complaint, on the ground that the Court has already ruled, in the annulling judgment, on the probative value of the evidence of disclosure of the earlier design, and that the existence of acts of disclosure of that design comes under the force of res judicata attaching to that judgment. They also dispute the admissibility of the applicant’s arguments put forward in the course of the proceedings, on the ground that they are out of time.

25      As a preliminary point, it should be recalled that the annulling judgment was the subject of an appeal before the Court, which, by order of 16 July 2020, Fabryki Mebli “Forte” v EUIPO (C‑183/20 P, not published, EU:C:2020:562), was not allowed to proceed, such that, from that date, the annulling judgment had become final.

26      It should be recalled that it has been held, first, that res judicata extends only to the matters of fact and law actually or necessarily settled by the judicial decision in question and, secondly, that the force of res judicata attaches not only to the operative part of that decision, but also to the ratio decidendi of that decision, which is inseparable from it (see judgments of 19 April 2012, Artegodan v Commission, C‑221/10 P, EU:C:2012:216, paragraph 87 and the case-law cited, and of 4 May 2017, Haw Par v EUIPO – Cosmowell (GELENKGOLD), T‑25/16, not published, EU:T:2017:303, paragraph 34).

27      Furthermore, an annulling judgment has only relative force of res judicata, which merely precludes the bringing of new actions with the same subject matter, between the same parties and being based on the same cause of action. Such a judgment is invested with the force of res judicata with absolute effect and, consequently, prevents legal questions which it had already settled from being referred to the Court for re-examination (see, to that effect, judgment of 1 June 2006, P & O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission, C‑442/03 P and C‑471/03 P, EU:C:2006:356, paragraph 41).

28      It should be recalled that, in order to establish events constituting disclosure of the earlier design, the intervener had produced, in support of its application for a declaration of invalidity of the contested design, the evidence described in paragraph 7 above.

29      It is common ground that, in the decision of 14 January 2019, the Third Board of Appeal found that the intervener had not established that the earlier design had been made available to the public in accordance with Article 7(1) of Regulation No 6/2002.

30      In the annulling judgment, the Court upheld the single plea of the action, alleging infringement of Article 7(1) of Regulation No 6/2002, and, by paragraph 1 of the operative part of that judgment, the Court annulled the decision of the Third Board of Appeal of 14 January 2019. First, as regards the authenticity of the evidence produced by the intervener, the Court found that the appellant’s unsubstantiated claims in that regard were not such as to cast doubt on the authenticity of the extract from the catalogue and invoices in question and that, therefore, the existence of that catalogue, of the printing in 2008 of 25 000 copies of the same catalogue and of the sale of furniture, dated 14 August 2008, to which the earlier design had been applied, had been established to the requisite legal standard by the intervener. Secondly, as regards the probative value of those elements, the Court found that they established the veracity of events constituting disclosure of the earlier design. It then considered that, on account of that proof, it was for the Board of Appeal to presume disclosure of the earlier design, before, if appropriate, examining the intervener’s arguments alleging that the events constituting the disclosure in question were not known to the circles specialised in the sector concerned.

31      In that regard, it should be noted that it is apparent from paragraphs 42 and 43 of the annulling judgment that those findings, set out in paragraphs 29 and 34 to 39 of that judgment, constitute the ground on which the plea alleging infringement of Article 7(1) of Regulation No 6/2002 was upheld and, consequently, the ground on which the decision of the Third Board of Appeal of 14 January 2019 was annulled. That ground thus constitutes the necessary basis for paragraph 1 of the operative part of that judgment annulling that decision of the Third Board of Appeal. Therefore, those findings are covered by the force of res judicata attaching to that judgment.

32      In the contested decision, the Board of Appeal endorsed the reasoning followed by the Court in the annulling judgment by taking the view, in paragraph 21 of the contested decision, that the disclosure of the earlier design had to be regarded as proved following that judgment and that, therefore, it was called upon, first, to adopt a position on the applicant’s arguments relating to the question of whether the circumstances of the present case could reasonably prevent those events from becoming known in the normal course of business to the circles specialised in the sector concerned and, secondly, to compare the designs at issue in order to assess the novelty and individual character of the contested design.

33      Therefore, by adopting the contested decision, the Board of Appeal observed the force of res judicata attaching to the ground set out above in paragraph 31 of the annulling judgment.

34      It should be noted that the applicant, by the arguments referred to in paragraphs 22 and 23 above, disputes once again the probative value of the documents produced by the intervener in support of its application for a declaration of invalidity. The probative value of those documents has already been examined and accepted in the ground of the annulling judgment referred to in paragraph 32 above, which has the force of res judicata. Therefore, the applicant is in fact asking the Court to disregard its own findings, which are, however, covered by the force of res judicata attaching to that judgment.

35      Moreover, since the applicant did not submit an application for revision of the annulling judgment under Article 169 of the Rules of Procedure of the General Court, the Court is, in any event, bound by those findings.

36      Furthermore, it should be noted that the applicant’s allegations referred to in paragraph 23 above are based on evidence produced for the first time before the Court.

37      The admission of such evidence, however, would be contrary to Article 188 of the Rules of Procedure according to which the parties’ pleadings in the context of the 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). The documents submitted for the first time before the Court must therefore be excluded, without it being necessary to examine their probative value (see, to that effect, judgment of 18 March 2010, Grupo Promer Mon Graphic v OHIM – PepsiCo (Representation of a circular promotional item), T‑9/07, EU:T:2010:96, paragraph 24).

38      It follows from the foregoing that, owing to the force of res judicata attaching to the annulling judgment and, in particular, to paragraphs 29 and 34 to 39 thereof, the first complaint must be declared inadmissible.

 Incorrect division of the evidential burden of the earlier design’s disclosure

39      By its second complaint, the applicant criticises the Board of Appeal, in finding that the earlier design had been disclosed in accordance with Article 7(1) of Regulation No 6/2002, for not having correctly divided between the applicant and the intervener the evidential burden of disclosure of that design. In that regard, it submits, first, that it made arguments demonstrating that the circumstances of the present case could reasonably prevent the events constituting the disclosure of that design from becoming known in the normal course of business to the circles specialised in the sector concerned and, secondly, that the intervener did not produce any evidence explaining the scope of the production and sale of the furniture to which the earlier design was applied, as well as the place, time and persons for whom that furniture was displayed. Consequently, the Board of Appeal should not have considered itself in a position to rule on whether the circles specialised in the sector concerned could, in the normal course of business, have come know of the facts of disclosure of the earlier design.

40      EUIPO and the intervener dispute the applicant’s arguments.

41      According to the case-law, a design is deemed to have been made available once the party asserting it has proved the events constituting the disclosure. In order to rebut 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).

42      Therefore, in order to establish that an earlier design has been disclosed, it is thus necessary to carry out an analysis in two stages, consisting in examining, in the first place, whether the evidence submitted in the application for a declaration of invalidity shows, on the one hand, facts constituting disclosure of a design and, on the other hand, that that disclosure occurred earlier than the date of filing or priority of the design at issue and, in the second place, where the holder of the design at issue has claimed the contrary, whether those facts could reasonably become known in the normal course of business to the circles specialised in the sector operating within the European Union, failing which a 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 (Display holder for vehicles), T‑74/18, EU:T:2019:417, paragraph 24).

43      In the present case, as has been recalled in paragraph 32 above, the Board of Appeal found that, in the light of the proven existence of events constituting disclosure of the earlier design, it was for the applicant to establish that the circumstances of the case reasonably prevented such events from becoming known to the circles specialised in the sector concerned in the normal course of business, in accordance with Article 7(1) of Regulation No 6/2002, as interpreted by the case-law cited in paragraphs 41 and 42 above.

44      Therefore, the applicant is wrong to criticise the Board of Appeal for having disregarded the division of the evidential burden of disclosure of the earlier design, with the result that the second complaint must be rejected.

 Knowledge of the events of disclosure of the earlier design by the specialist circles in the sector concerned

45      By its third complaint, the applicant criticises the Board of Appeal for having found, wrongly, that it had not established that the circumstances of the present case could reasonably prevent those disclosure events of the earlier design established by the intervener from becoming known in the normal course of business to the circles specialised in the sector concerned. In that regard, it criticises the Court for having distorted, failed to take into account, incorrectly presented or assessed certain items of evidence produced before it.

46      EUIPO and the intervener dispute the applicant’s arguments.

47      It should be recalled that, in order to rebut the presumption that a design is deemed to have been made available once the party relying thereon has proven the events constituting disclosure, it is for the party challenging disclosure to establish to the requisite legal standard that the circumstances of the case could reasonably prevent those facts from becoming known to the circles specialised in the sector concerned in the normal course of business (judgment of 21 May 2015, Umbrellas, T‑22/13 and T‑23/13, EU:T:2015:310, paragraph 26).

48      In that regard, it must be examined whether, on the basis of facts which must be adduced by the party challenging the disclosure, it is appropriate to consider that it was not actually possible for the circles specialised in the sector concerned to be aware of the events constituting disclosure, whilst bearing in mind what can reasonably be required of those circles in terms of being aware of prior art. Those facts may concern, for example, the composition of those circles, their qualifications, customs and behaviour, the scope of their activities, their presence at events where designs are presented, the characteristics of the design at issue, such as their interdependency with other products or sectors, and the characteristics of the products into which the design at issue has been integrated, including the degree of technicality of the product concerned. In any event, a design cannot be deemed to be known in the normal course of business if the circles in question can become aware of it only by chance (judgment of 21 May 2015, Umbrellas, T‑22/13 et T‑23/13, EU:T:2015:310, paragraph 29).

49      In addition, an unregistered design may reasonably have become known in the normal course of business to the circles specialised in the sector concerned, operating within the European Union, if images of that design were distributed to traders operating in that sector (see, to that effect, judgments of 13 February 2014, H. Gautzsch Großhandel, C‑479/12, EU:C:2014:75, paragraph 30, and of 17 May 2018, Basil v EUIPO – Artex (Bicycle baskets), T‑760/16, EU:T:2018:277, paragraph 64). The disclosure to a single business entity or dealer of an earlier design may accordingly, in certain circumstances, be considered as a relevant disclosure within the meaning of Article 7 of Regulation No 6/2002 (see, to that effect, judgment of 13 February 2014, H. Gautzsch Großhandel, C‑479/12, EU:C:2014:75, paragraph 35).

50      Furthermore, the first sentence of Article 7(1) of Regulation No 6/2002 makes the question of whether there is disclosure to the public dependent only upon how that disclosure is in fact achieved and not upon the product in which that design is intended to be incorporated or to which it is intended to be applied (judgment 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 99).

51      The Board of Appeal took the view that the applicant had failed to adduce any factual evidence or argument – which was not a mere allegation more insinuation – to establish that the circumstances of the case could reasonably prevent the disclosure in question from becoming known to the circles specialised in the sector concerned in the normal course of business. In that regard, it reproduced statements by the applicant which it considered to be mere allegations or insinuations.

52      In the present case, the applicant bases its argument on, first, a furniture assembly leaflet bearing the reference ‘WHITE WH9’ to which the earlier design was applied and, secondly, a written statement dated 18 October 2016 from one of the applicant’s employees claiming to have designed a series of furniture which includes the furniture to which the contested design was applied. As regards that furniture assembly leaflet, the applicant infers from it that that furniture is sold, transported and supplied unassembled, that is to say with an appearance which is not that of the earlier design. In those circumstances, such furniture does not have the appearance of the earlier design and does not produce, in particular on people who load and unload the packages containing the various components of that furniture to be assembled, an overall impression similar to that produced by the contested design. It adds that the intervener has not proved that the furniture was ever assembled and displayed.

53      First, it must be stated that the Board of Appeal did not expressly refer to the evidence described in paragraph 52 above and, further, that the allegations of distortion and misrepresentation of that evidence by the Board of Appeal are not substantiated in any way, with the result that they must be rejected.

54      Secondly, the absence of an express reference to the items referred to in paragraph 52 cannot in itself ground the conclusion that the Board of Appeal failed to take them into consideration. On the contrary, by taking the view that the applicant ‘had not adduced any factual evidence or put forward any argument, which is not merely a claim or insinuation, seeking to establish that the circumstances of the case could reasonably prevent the disclosure in question becoming known to the circles specialised in the sector concerned in the normal course of business’, it implicitly but necessarily considered that the evidence in question did not prove the existence of an obstacle to the knowledge by the specialised circles in question of the disclosure of the earlier design.

55      Moreover, as regards, first, the fact that the furniture to which the earlier design was applied is sold disassembled, it is sufficient to note that, having regard to the principle recalled in paragraph 50 above, it has no bearing on the disclosure of that design within the meaning of Article 7(1) of Regulation No 6/2002. Therefore, that fact cannot have reasonably prevented the disclosure of the earlier design from becoming known in the normal course of business to the circles specialised in the sector concerned.

56      As regards, secondly, the written statement of the applicant’s employee claiming to have designed a series of furniture which includes the furniture to which the contested design was applied, it must be recalled that, in order to assess the evidential value of a document, it is necessary to check the plausibility and the accuracy of the information which that document contains. 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 (see judgment of 17 May 2018, Bicycle baskets, T‑760/16, EU:T:2018:277, paragraph 42 and the case-law cited).

57      In that regard, the particulars in an affidavit made by a person linked, in any manner whatsoever, to the company relying on it must, in any event, be supported by other evidence (see, to that effect, judgment of 18 November 2015, Liu v OHIM – DSN Marketing (Case for a portable computer), T‑813/14, not published, EU:T:2015:868, paragraph 29 and the case-law cited.)

58      The applicant, however, has not produced other evidence capable of establishing that the circumstances of the case could reasonably prevent those events from becoming known in the normal course of business to the circles specialised in the sector concerned. Therefore, in the absence of evidence corroborating it, the written statement of one of its employees is not sufficient to establish such circumstances.

59      Consequently, the Board of Appeal was right to conclude that the earlier design had been disclosed within the meaning of Article 7(1) of Regulation No 6/2002.

60      It follows that the third complaint must be rejected, as must, therefore, the first plea in its entirety.

 Second plea in law, alleging infringement of Article 6(1)(b) of Regulation No 6/2002

61      By its second plea, the applicant criticises the Board of Appeal for having infringed Article 6(1)(b) of Regulation No 6/2002 by finding, wrongly, that the contested design lacked individual character.

62      In that regard, the applicant submits, first, that any comparison of the designs at issue was impossible due to the poor quality, lack of clarity and incompleteness of the images of the earlier design contained in the catalogue extract produced by the intervener, which prevented all the details of that design from being discerned sufficiently. It submits, in particular, that the top part of that design is not visible. It adds that there is no certainty that the two views of the earlier design represent the same piece of furniture. Secondly, it submits that the designs at issue produce different overall impressions on the informed user and denies having asserted the contrary in the course of the proceedings before EUIPO.

63      EUIPO and the intervener dispute the applicant’s arguments.

64      According to Article 6(1)(b) of Regulation No 6/2002, 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 or, if a priority is claimed, before the date of priority.

65      Article 6(2) of Regulation No 6/2002 also specifies that, in assessing that individual character, the degree of freedom of the designer in developing the design must be taken into consideration.

66      It is apparent, moreover, from recital 14 of Regulation No 6/2002 that, when assessing the individual character of a design, consideration must be taken of the nature of the product to which the design is applied or in which it is incorporated, and, in particular, the industrial sector to which it belongs and the degree of freedom of the designer in developing the design.

67      The assessment of the individual character of a Community design is therefore based, in essence, on a four-step examination. That examination consists in deciding upon, 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 to the similarities and the differences in the comparison of the designs; thirdly, the designer’s degree of freedom in developing his or her design, the influence of which on individual character is in inverse proportion; and, fourthly, taking that degree of freedom into account, the outcome of the comparison, direct if possible, of 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, Display holder for vehicles, T‑74/18, EU:T:2019:417, paragraph 66 and the case-law cited).

68      Thus, 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).

69      It is in the light of those principles that it must be examined whether the Board of Appeal correctly concluded that the contested design lacked individual character, in so far as it produced the same overall impression as the earlier design on the informed user.

70      It should be noted that the applicant does not dispute the Board of Appeal’s assessments relating to the sector of the products to which the contested design is intended to be incorporated or applied, the informed user of such products and the degree of freedom of the designer of such products, or the description of the features of the designs at issue. However, it disputes the conclusion relating to the lack of individual character of the contested design.

71      In the contested decision, the Board of Appeal noted that the designs at issue represented wardrobes. It added that the informed user of a wardrobe could be anyone who purchases such a product, uses it in accordance with its intended purpose and has become informed on the subject by browsing through catalogues of, or including, furniture, visiting the relevant stores or downloading information from the Internet and, as a result of his or her interest in the products concerned, shows a relatively high degree of attention when using them. It also noted that the freedom of the designer of wardrobes was not limited, in particular as regards the choice of size, material, supporting elements, colour and decorative patterns.

72      Furthermore, the Board of Appeal found that the images of the earlier design were of sufficient quality for comparing the overall impressions produced on the informed user by the designs at issue. In the context of that comparison, it noted that the designs at issue coincided in their white rectangular shape, their broad frame, their doors divided into small sections by several parallel thin horizontal lines and a longer thin vertical line, as well as by their feet of the same size and shape. It also noted that the furniture differed in the number of horizontal lines and, therefore, of sections on their doors, as well as in the exact shape of those sections, which are rectangular in the contested design and square in the earlier design, and, lastly, in the exact position of the handles of their doors. Those findings are not disputed by the applicant.

73      In addition, the Board of Appeal took the view that the feature that first attracted the informed user’s attention was the division of the front part of the wardrobe into two doors of similar proportions, each divided into several sections by fine horizontal lines. It added that the designs at issue would both be perceived as representing a wardrobe with two doors containing small sections that differ only in minor details, namely the exact shape and number of sections and the position of handles. It inferred from this that, account being had, first, of the designer’s freedom, which is not limited by legal or technical constraints, and, secondly, of the similarities between the designs at issue, those slight differences would be perceived as minor variations of one and the same design and, consequently, could not suffice to produce a different overall impression.

74      As regards, in the first place, the applicant’s arguments relating to the quality of the images of the earlier design and the fact that certain parts of the furniture in question are not visible due to the framing of those representations, it must be stated that those representations enabled the Board of Appeal to note the similarities and differences between the designs at issue set out in paragraph 72 above, which are not disputed by the applicant.

75      Moreover, the case-law has already considered that part of the product represented by a design which is outside the user’s immediate field of vision will not have any major impact on the perception which that user has of the design in question (judgment of 22 June 2010, Shenzhen Taiden v OHIM – Bosch Security Systems (Communications equipment), T‑153/08, EU:T:2010:248, paragraph 65).

76      Furthermore, the overall impression produced by a design must necessarily be determined in the light of the manner in which the product in question is used, in particular on the basis of the handling to which it is normally subject on that occasion (see, to that effect, judgment of 22 June 2010, Communications equipment, T‑153/08, EU:T:2010:248, paragraph 66).

77      In the present case, it is common ground that the designs at issue represent wardrobes, which are, most often, handled by opening their doors and are intended to be placed on the ground and against a wall. Therefore, their rear, lower and upper surfaces will be, at the very least, not very visible, and are liable to have little influence on the overall impression produced on the informed user.

78      Lastly, the applicant’s claim that it is not certain that the two views of the earlier design represent the same piece of furniture and, therefore, the same design, must be rejected, in the absence of any evidence capable of substantiating it.

79      Consequently, the Board of Appeal was right to compare the designs at issue on the basis of images of the earlier design produced by the intervener in support of its application for a declaration of invalidity.

80      As regards, in the second place, the arguments by which the applicant considers that the designs at issue, due to their differences, produce different overall impressions on the informed user, it should be recalled that differences will be insignificant in the overall impression produced by the designs at issue where they are not sufficiently pronounced to distinguish the goods in question in the perception of the informed user or offset the similarities found between those designs (see judgment of 21 April 2021, Bibita Group v EUIPO – Benkomers (Beverage bottle), T‑326/20, EU:T:2021:208, paragraph 63 and the case-law cited).

81      In that regard, 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 sufficient to produce different overall impressions on an informed user. Accordingly, if the designer enjoys a high degree of freedom in developing a design, that reinforces the conclusion that designs that do not have significant differences produce the same overall impression on an informed user (see judgment of 21 May 2015, Umbrellas, T‑22/13 and T‑23/13, EU:T:2015:310, paragraph 57, and the case-law cited).

82      In the present case, it should be noted, first, as the Board of Appeal correctly pointed out, that the designs at issue coincide in their rectangular shape and their white colour. In that regard, the applicant’s claim that the furniture to which the earlier design was applied is white in one of the representations of that design and ‘greyish’ in the other cannot succeed. Apart from the fact that that difference in colour could result from the lighting conditions of the wardrobe represented, it must be held that, even if that claim were proved, that difference is so slight as not to be able to influence in a decisive manner the overall impression produced by that design.

83      Secondly, the applicant merely relies, without putting forward other arguments, on the Board of Appeal’s assertion that the informed user will not overlook the differences found between the designs at issue, in order to infer from that that those designs produce different overall impressions on that user.

84      As was noted by the Board of Appeal, however, the informed user will perceive the differences, recalled in paragraph 72 above, between the designs in question, as minor. Therefore, having regard to the high degree of freedom of the wardrobe designer, they cannot lead to those designs producing different overall impressions on that user.

85      The claim by which the applicant disputes having acknowledged during the proceedings before EUIPO that the designs at issue produce an identical overall impression on the informed user has no bearing on that finding.

86      Therefore, in the light of the foregoing, it is without committing an error of assessment that the Board of Appeal concluded that the contested design lacked individual character.

87      It follows that the second plea in law must be rejected and, consequently, the action must be dismissed in its entirety.

88      In the light of the dismissal of the appeal against the contested decision, paragraph 1 of the operative part of the latter, which rejects the action against the decision of the Cancellation Division of 21 December 2017 granting the application for a declaration of invalidity of the contested design, applies, such that there is no need to rule on the intervener’s head of claim seeking that the Court grant that application (see, to that effect, judgment of 14 March 2018, Crocs v EUIPO – Gifi Diffusion (Footwear), T‑651/16, not published, EU:T:2018:137, paragraph 76).

 Costs

89      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 forms of order sought by EUIPO and the intervener.

On those grounds,

THE GENERAL COURT (Fifth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Fabryki Mebli “Forte” S.A. to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO) and byBog-Fran sp. z o.o. sp.k.

Delivered in open court in Luxembourg on 2 March 2022.

*      Language of the case: English.

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