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

JUDGMENT OF THE GENERAL COURT (Sixth Chamber)

19 October 2022 (*)

(Community design – Invalidity proceedings – Registered Community design representing a post – Ground for invalidity – Failure to comply with the requirements for protection – Article 25(1)(b) of Regulation (EC) No 6/2002 – Features of appearance of a product solely dictated by its technical function – Article 8(1) of Regulation No 6/2002)

In Case T‑231/21,

Praesidiad Holding, established in Zwevegem (Belgium), represented by M. Rieger-Jansen and D. Op de Beeck, lawyers,

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

Zaun Ltd, established in Wolverhampton (United Kingdom), represented by O. Petter and J. Saladin, lawyers,

THE GENERAL COURT (Sixth Chamber),

composed, at the time of the deliberations, of A. Marcoulli, President, S. Frimodt Nielsen (Rapporteur) and R. Norkus, Judges,

Registrar: G. Mitrev, Administrator,

having regard to the written part of the procedure,

further to the hearing on 22 June 2022,

gives the following

Judgment

1        By its action under Article 263 TFEU, the applicant, Praesidiad Holding, seeks the annulment and the alteration of the decision of the Third Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 15 February 2021 (Case R 2068/2019‑3) (‘the contested decision’).

 Background to the dispute

2        On 27 March 2018, the intervener, Zaun Ltd, filed with EUIPO an application for a declaration of invalidity of the Community design which had been registered under the number 127204-0001 following an application filed by the applicant on 26 January 2004, and which is represented in the following views:

3        The product to which the design in respect of which a declaration of invalidity was sought is intended to be applied is in Class 25.02 of the Locarno Agreement Establishing an International Classification for Industrial Designs of 8 October 1968, as amended, and corresponds to the following description: ‘Postsʼ.

4        The grounds relied on in support of the application for a declaration of invalidity were, inter alia, those set out in Article 25(1)(b) of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1), read in conjunction with Article 8(1) of that regulation.

5        The application for a declaration of invalidity was based on, inter alia, failure to comply with the requirements for protection of the appearance of a Community design. The intervener took the view that the features of appearance of the product concerned were solely dictated by the technical function of the product concerned.

6        On 19 July 2019, the Cancellation Division rejected the application for a declaration of invalidity.

7        On 16 September 2019, the intervener filed a notice of appeal with EUIPO against the Cancellation Division’s decision. The appeal was confined to the ground for invalidity set out in Article 8(1) of Regulation No 6/2002.

8        By the contested decision, the Board of Appeal of EUIPO upheld the appeal. In particular, after examining European patent application EP 1564351B1 (‘the patent application’) and the evidence submitted by the applicant, the Board of Appeal found that that evidence was not convincing enough to prove that the features of appearance of the product concerned had been dictated by considerations other than technical ones. It therefore concluded that the contested design had to be declared invalid, in accordance with Article 25(1) of Regulation No 6/2002, read in conjunction with Article 8(1) of that regulation.

 Forms of order sought

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

–        annul the contested decision;

–        reject the application for a declaration of invalidity in its entirety;

–        order the intervener and EUIPO to pay the costs.

10      EUIPO and the intervener contend that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

 The first head of claim, seeking the annulment of the contested decision

11      The applicant relies in essence on five pleas in law, the first, second, third and fifth of which allege infringement of Article 8(1) of Regulation No 6/2002 and the fourth of which alleges infringement of Article 62 of that regulation.

12      Furthermore, although the applicant formally submits, in its first, second, third and fifth pleas, that there has been infringement only of Article 8(1) of Regulation No 6/2002, it is necessary to take the view, in the light of the arguments in the application, which have been submitted in the context of a dispute relating to invalidity proceedings, that the applicant is seeking to submit that there has been infringement of Article 25(1)(b) of Regulation No 6/2002, read in conjunction with Article 8(1) of that regulation.

13      Under Article 25(1)(b) of Regulation No 6/2002, a Community design may be declared invalid if it does not fulfil the requirements of Articles 4 to 9 of that regulation.

14      Article 8(1) of Regulation No 6/2002 provides that a Community design is not to subsist in features of appearance of a product which are solely dictated by its technical function.

15      Recital 10 of Regulation No 6/2002 states the following:

‘Technological innovation should not be hampered by granting design protection to features dictated solely by a technical function. It is understood that this does not entail that a design must have an aesthetic quality. Likewise, the interoperability of products of different makes should not be hindered by extending protection to the design of mechanical fittings. Consequently, those features of a design which are excluded from protection for those reasons should not be taken into consideration for the purpose of assessing whether other features of the design fulfil the requirements for protection.’

16      As regards the features of appearance of a product which are solely dictated by its technical function, the Court of Justice has held that Article 8(1) of Regulation No 6/2002 excludes protection under the law on Community designs for features of appearance of a product where considerations other than the need for that product to fulfil its technical function, in particular those related to the visual aspect, have not played any role in the choice of those features, even if other designs fulfilling the same function exist (judgment of 8 March 2018, DOCERAM, C‑395/16, EU:C:2018:172, paragraph 31). Furthermore, in order to determine whether the relevant features of appearance of a product are solely dictated by its technical function, within the meaning of Article 8(1) of Regulation No 6/2002, the Court must take account of all the objective circumstances relevant to each individual case and there is no need to base those findings on the perception of an ‘objective observer’ (judgment of 8 March 2018, DOCERAM, C‑395/16, EU:C:2018:172, paragraph 38). That assessment must be made, in particular, having regard to the design at issue, the objective circumstances indicative of the reasons which dictated the choice of features of appearance of the product concerned, information about its use or the existence of alternative designs which fulfil the same technical function, provided that those circumstances, that information or the existence of alternative designs are supported by reliable evidence (judgment of 8 March 2018, DOCERAM, C‑395/16, EU:C:2018:172, paragraphs 36 and 37).

17      It is in the light of those factors that the pleas relied on by the applicant must be assessed.

18      It must be held, in essence, that, in support of its action, and in the context of its first two pleas, the applicant relies on an overarching argument, which is based on the existence of features of appearance of the product concerned which have not been solely dictated by the technical function of that product. It must therefore be analysed whether the Board of Appeal was right in finding that no considerations other than technical considerations were taken into account when the contested design was created.

19      It is thus necessary to examine together the first and second pleas, in the context of which the applicant submits, in essence, that, in the light of the judgment of 8 March 2018, DOCERAM (C‑395/16, EU:C:2018:172), the Board of Appeal erroneously imposed on the contested design features described in the patent application, which led it to err in finding that the features of the contested design were solely dictated by the technical function of the product concerned. Furthermore, the applicant contends that the Board of Appeal found that each of the features of the contested design, namely the ‘open channel and flange’, the ‘U-shaped profile’ and the ‘cover plate’ solely served a technical function, without conducting a sufficient assessment of the evidence which had been submitted before it.

20      EUIPO submits, in essence, first, that the patent application constitutes prima facie evidence that the features of the product concerned are solely dictated by its technical function. Secondly, it argues that the Board of Appeal rightly found, taking into account all of the arguments and evidence which had been submitted by the applicant, that they were insufficient to prove otherwise.

21      The intervener submits, first, that the Board of Appeal did not rely excessively on the patent application and did not disregard the evidence adduced by the applicant.  Secondly, it takes the view that the Board of Appeal carefully examined and took into account all the evidence which had been submitted by the applicant, but was rightly not persuaded that visual considerations had played a role in the creation of the contested design.

 Preliminary remarks

22      First of all, the applicant claims that the Board of Appeal did not recognise the possibility that a feature may have both a technical function and have been designed by taking visual considerations into account. However, that reasoning is the result of a misreading of the contested decision. It is apparent from the context of that decision and, in particular, from paragraphs 33, 36, 40 and 41 of that decision that the Board of Appeal did not adopt the approach that the technical function and visual considerations were mutually exclusive, but found that it had not been proved that the features of appearance of the product concerned had not been solely dictated by the technical function of that product.

23      Next, the applicant submits that the Board of Appeal established a quantitative threshold by finding that the evidence which it had submitted was not sufficient to invalidate the finding that all the features of appearance of the contested design were dictated by the technical function of the product concerned.

24      However, it is not apparent from the judgment of 8 March 2018, DOCERAM (C‑395/16, EU:C:2018:172), that, where evidence, whether convincing or not, is provided by the holder of the design at issue, it must automatically be held that considerations other than technical considerations played a role in the choice of the features of appearance of the product concerned. That lack of automaticity is not tantamount to the creation of a quantitative threshold, but reflects the need for the evidence adduced to be convincing and capable of proving the parties’ arguments. In that regard, the Board of Appeal found, in paragraphs 40 and 41 of the contested decision, that the evidence provided by the applicant did not serve to defend the applicant’s position. The applicant therefore errs in submitting that the Board of Appeal established a quantitative threshold.

25      Those two arguments must therefore be rejected.

 The patent application

26      In assessing the considerations which had been taken into account when the contested design was created, the Board of Appeal relied on the patent application in order to determine what the technical functions of each feature of the contested decision were, as is apparent from paragraphs 31, 33, 36 and 38 of the contested decision.

27      The applicant submits, in the context of its first plea, that the Board of Appeal relied excessively on the patent application and concluded prematurely that the contested design had been developed by taking into account only technical considerations. It argues that it assessed the evidence which it had provided only subsequently, and not in order to reach an overall conclusion resulting from an overall examination of all the relevant material.

28      In that regard, it must be stated that, according to the case-law, it follows from Article 36(6) of Regulation No 6/2002 that, in order to ascertain the product to which a Community design is intended to be applied, the indication which relates to that product in the application for registration of that design should be taken into account, but also, where necessary, the design itself, in so far as it makes clear the nature of the product, its intended purpose or its function (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 56).

29      However, EUIPO may rely, in the light of the degree of difficulty of the design at issue, on other relevant material, and, inter alia, on data relating to intellectual property rights conferred previously in respect of the product concerned (see, by analogy, judgments of 14 September 2010, Lego Juris v OHIM, C‑48/09 P, EU:C:2010:516, paragraph 71; of 10 November 2016, Simba Toys v EUIPO, C‑30/15 P, EU:C:2016:849, paragraphs 48 to 50; and of 6 March 2014, Pi-Design and Others v Yoshida Metal Industry, C‑337/12 P to C‑340/12 P, not published, EU:C:2014:129, paragraph 54).

30      In the present case, the contested design consists of a graphic representation of a security fence post, without explanations as to how the product concerned functions. As EUIPO submits in the response, a patent application such as that which was examined in the present case constitutes relevant material on which the Board of Appeal was entitled to rely, even though the contested design concerns only a section of a security fence and does not include the panels or fastening means which are also represented in the patent application.

31      However, it must be pointed out that, in the context of its analysis, the Board of Appeal could not confine itself to taking into account only the patent application, but also had to take into consideration the other relevant material provided by the parties. As the applicant submits, although there is a patent application representing the contested design, that fact cannot, on its own, rule out any possibility that considerations other than technical considerations played a role in the creation of the contested design.

32      In the present case, it is apparent from paragraphs 33, 37 and 38 of the contested decision that the Board of Appeal deduced from the patent application that only technical considerations had been taken into account in the creation of the contested design. However, a patent is a document which explains the technical specificities of a product. Such a document, on account of its exclusively technical purpose, cannot, however, serve automatically to rule out the possibility that considerations other than technical considerations, for example considerations of a visual nature, might also have been taken into account in the creation of a design which is, moreover, represented in that document.

 The evidence of the existence of considerations other than technical considerations which was provided by the applicant

33      In the contested decision, the Board of Appeal found that the evidence adduced by the applicant reinforced the finding that only technical considerations had been taken into account in the design process of the contested design. First of all, with regard to the opinions of four experts which were provided by the applicant, the Board of Appeal found that those opinions consisted of vague statements and did not suffice to support the applicant’s argument that visual considerations had played a role in the creation of the contested design. Next, it found that the mere existence of alternative designs was inconclusive, since the expert opinions did not show the role played by visual considerations. Lastly, with regard to the catalogues, brochures and related items of evidence, the Board of Appeal found that they were not sufficient to establish that considerations other than technical considerations had played a role in the creation of the contested design. It took the view that that finding was borne out by the applicant’s promotional material relating to the product concerned, which commended only its technical qualities.

34      In the context of the second plea, the applicant criticises, in essence, the Board of Appeal’s findings as regards the contested design and does so in relation to the expert opinions, the existence of alternative designs and the fact that the product concerned is visible to the public.

–       The expert opinions

35      It should be noted at the outset that, as was confirmed by the parties at the hearing, the independence, impartiality and credibility of the four experts and the evidential value of their opinions were not called into question by the Board of Appeal.

36      It must also be pointed out that it is common ground between the parties that the features of the contested design are the following: a flange and an open channel, a ‘U-shaped profile’ and a cover plate. The function of the product concerned is to serve as an attachment point for the fence’s mesh panels and therefore to support the fence.

37      First of all, with regard to the flange and open channel, the applicant provided expert opinions which confirm in particular that the doubled-back folds of the flange and the open channel make the product concerned more visually pleasing and reinforce the visual aspect of the contested design. According to one expert, ‘the resulting effect of the whole post … makes me think this would have been an aesthetic [visual] … consideration’. Another expert claims that that feature has admittedly been designed probably to make the structure more robust ‘but also almost certainly because it adds to the desired visual impact of the overall [contested] design’. A third expert refers to the elements which he considers as not having been dictated by the technical function of the product concerned, including that flange and open channel, which, according to him, are ‘visually pleasing and produc[e] another semi-circular detail’.

38      Next, as regards the ‘U-shaped profile’, one expert is of the opinion that that feature is likely to ‘also have been an aesthetic [visual] consideration of the designer as it makes a more visually pleasing profile than if a box, straight-edged shape had been used’. Furthermore, a second expert adds that ‘the fact a U-shaped post design has been chosen suggests that visual considerations played a not insignificant role’. Another expert states that it is a feature ‘that the designer is likely to have adopted for visual or aesthetic reasons rather than purely functional reasons and which could be argued forms a unique aesthetic’.

39      Taking the contested design as a whole, another expert takes the view that, ‘whilst functional considerations will necessarily have played a significant role in the design of [the] product [concerned], in [his] opinion these were not the only considerations at play during the design process [of that product]’. He also adds, in essence, that, if only technical considerations had been taken into account, the expected result would not have been that which was actually achieved.

40      It is therefore true that all the expert opinions provided by the applicant confirm the important, or even preponderant, role which technical considerations played in the design process, but, at the same time, they refer to visual considerations having been taken into account in the creation of at least two of the three features of the contested design. However, the Board of Appeal rejected such considerations, observing that the expert opinions reinforced the finding that technical considerations had been taken into account. The application of Article 8(1) of Regulation No 6/2002 does not, however, depend on whether technical considerations were taken into account in the creation of the design at issue, which is not disputed, but on the total lack of other considerations.

41      The Board of Appeal also ruled out the existence of considerations other than technical considerations by stating that the expert opinions contained vague statements, which were insufficient to show that visual considerations had played a role in the creation of the contested design. However, it must be stated that, on the contrary, those expert opinions show the importance of aesthetic qualities in the design of security fence posts and refer to the actual features of the contested design in order to evoke the role which visual considerations played in its creation, as is apparent from paragraphs 37 and 38 above. Furthermore, the view of an expert, giving an opinion on a Community design, cannot be rejected for the sole reason that the conditional tense or expressions such as ‘in my opinion’ or ‘I think that’ are used in the opinion of that expert.

42      That finding cannot be undermined by the intervener’s argument which calls into question the experts’ understanding of the function of the product concerned and therefore their ability to provide a relevant opinion regarding the contested design. The intervener submits that the experts were unable to understand how the features of the contested design interacted with the features of the mesh panels attached to the product concerned, in particular because they had not been provided with the patent application. However, as has been pointed out in paragraph 40 above, in order to be protected, a Community design may have been designed by taking technical considerations into account, as long as they were not the only considerations. Consequently, since the experts found that visual considerations existed, although they were not acquainted with the patent application, the existence of possible technical considerations which might be deduced from that application cannot call their findings into question.

43      Furthermore, the fact that the expert opinions reproduced in paragraphs 37 and 38 above show that only two of the three features, namely the flange and open channel and the ‘U-shaped profile’, were not dictated solely by the technical function of the product concerned cannot call that finding into question. The Court has already held that, if at least one of the features of appearance of the product concerned by a Community design is not solely dictated by the technical function of that product, the design at issue cannot be declared invalid under Article 8(1) of Regulation No 6/2002 (judgment of 24 March 2021, Lego v EUIPO – Delta Sport Handelskontor (Building block from a toy building set), T‑515/19, not published, EU:T:2021:155, paragraph 96).

–       The existence of alternative designs

44      It is apparent from paragraphs 32, 36 and 37 of the judgment of 8 March 2018, DOCERAM (C‑395/16, EU:C:2018:172), that the existence of alternative designs which fulfil the same technical function is one of the objective circumstances indicative of the reasons which dictated the choice of features of appearance of the product concerned, but that the existence of alternative designs cannot, on its own, lead to the conclusion that the appearance of the feature in question was dictated by considerations other than technical considerations.

45      In that regard, it must be stated that, in the contested decision, the Board of Appeal rejected any argument relating to the existence of alternative designs as insufficient. However, as has been established by the case-law referred to in paragraph 44 above, the existence of alternative designs, although it does not constitute evidence which makes it possible, on its own and in all cases, to prove that considerations other than technical considerations were taken into account in the creation of the design at issue, constitutes a relevant factor which may be taken into account. The existence of alternative designs may substantiate other items of evidence which have been provided, such as, for example, expert opinions.

46      In the present case, the applicant relies on the evidence which the intervener provided during the proceedings before EUIPO (Annexes 3, 4 and 5 to the application for a declaration of invalidity), which shows that security fence posts which have shapes that are different from that of the contested design exist. Consequently, even though the existence of alternative designs is not on its own decisive, the Board of Appeal should not have excluded it from its assessment of the considerations which dictated the features of appearance of the product concerned.

–       The fact that the product concerned is visible to the public

47      The applicant submits that it is rare for a designer to design a product without a scintilla of care for what it looks like and even rarer where the product is intended to be in contact with humans and be perceived by them. It must therefore be examined whether the fact that the product concerned is visible to the public is one of the objective circumstances within the meaning of the judgment of 8 March 2018, DOCERAM (C‑395/16, EU:C:2018:172).

48      As has been stated in paragraph 16 above, in order to determine whether the relevant features of appearance of a product are solely dictated by its technical function, within the meaning of Article 8(1) of Regulation No 6/2002, the Court must take account of all the objective circumstances relevant to each individual case and it must rely, inter alia, on ‘information about its use’ (judgment of 8 March 2018, DOCERAM, C‑395/16, EU:C:2018:172, paragraphs 37 and 38).

49      In the present case, it must be held that the fact that the product concerned is visible to the public, a fortiori where it is particularly large, like a security fence post, is of some importance in the creation of its design. As is shown, in essence, by the expert opinions provided by the applicant, when products are highly visible in their external environment on account of their size, the designer is led to consider how to make the product blend in with its environment so that it is as unobtrusive as possible. The public’s perception of the product at issue will therefore be taken into account by the designer of that product. The expert opinions, which refer to the visual qualities of the product concerned in particular and acknowledge that the visual aspect is an important factor in the design of a security fence post, constitute objective evidence of the existence of considerations other than technical considerations in the creation of the contested design.

50      Furthermore, the findings of the experts are borne out by the catalogues, brochures and other related items of evidence provided by the applicant. In that regard, the Board of Appeal found, in paragraph 41 of the contested decision, that that evidence contained information regarding the technical specificities of the product concerned, referred to general information and did not establish that considerations other than technical considerations had played a role in the creation of the contested design.

51      However, in the present case, that evidence cannot be disregarded, since it confirms that the aesthetic aspect is an important factor in the design of security fence posts in general. It is apparent, for example, from an article in an online magazine that the user of a security fence will have certain aesthetic requirements so that the product will blend in with the environment. The various marketing materials of undertakings which are in competition with the applicant commend the aesthetic qualities, in addition to the technical qualities, of the posts and security fences which they offer. Guides or a handbook for the design of products such as the product concerned inform designers that the integration of the product into the environment is a factor which is just as important as the technical functions which it must fulfil.

52      At the hearing, the intervener submitted that it was not stated in the brochure describing the product concerned that that product had visual qualities. However, the catalogues, brochure and other related items of evidence serve to prove the importance of aesthetic qualities in the design of security fence posts in general, and not to establish the importance of aesthetic qualities specifically with regard to the product concerned. That importance is, moreover, proved by the expert opinions and by the fact that the product concerned is highly visible to the public. The lack of indication of the visual qualities of the product concerned in the brochures provided by the applicant is not therefore capable of calling into question the conclusions drawn from the rest of the evidence provided by the applicant.

53      Consequently, the fact that the product concerned is visible to the public is one of the objective circumstances which make it possible to prove that the features of appearance of the product concerned have not been solely dictated by the technical function of that product, although, like the existence of alternative designs, that circumstance cannot, on its own, suffice to prove that.

54      It follows from all of the foregoing that the Board of Appeal erred in finding that all the features of appearance of the contested design had been solely dictated by the technical function of the product concerned. It could not have been unaware that it is apparent from the overall analysis of the evidence provided, and therefore from the objective circumstances relevant to the present case, and, in particular, from the expert opinions, the existence of alternative designs and the fact that the product concerned is visible to the public and is very large, that two of the three features of appearance of the product concerned were not solely dictated by the technical function of that product and that the visual aspect of the product concerned was taken into account by its designer.

55      Consequently, in view of all of the foregoing considerations, the first and second pleas, alleging, in essence, infringement of Article 25(1)(b) of Regulation No 6/2002, read in conjunction with Article 8(1) of that regulation, in so far as the Board of Appeal found that the features of appearance of the product concerned had been dictated solely by the technical function of that product, must be upheld, without it being necessary to examine the applicant’s other complaints, and the contested decision must be annulled in its entirety.

 The second head of claim, seeking the alteration of the contested decision

56      By its second head of claim, the applicant requests that the Court reject the application for a declaration of invalidity of the contested design. That claim must be construed, as was confirmed by the applicant at the hearing, as a claim by the applicant for alteration pursuant to Article 61(3) of Regulation No 6/2002, requesting that the Court should adopt the decision which the Board of Appeal should have taken (see, by analogy, judgment of 7 February 2018, Şölen Çikolata Gıda Sanayi ve Ticaret v EUIPO – Zaharieva (Packaging for ice-cream cornets), T‑794/16, not published, EU:T:2018:70, paragraph 84 and the case-law cited).

57      In that regard, it must be borne in mind that the power of the Court to alter decisions pursuant to Article 61(3) of Regulation No 6/2002 does not have the effect of conferring on that Court the power to carry out an assessment on which the Board of Appeal has not yet adopted a position. Exercise of the power to alter decisions must therefore, in principle, be limited to situations in which the Court, after reviewing the assessment made by the Board of Appeal, is in a position to determine, on the basis of the matters of fact and of law as established, what decision the Board of Appeal was required to take (see, by analogy, judgment of 7 February 2018, Packaging for ice-cream cornets, T‑794/16, not published, EU:T:2018:70, paragraph 85 and the case-law cited).

58      The request that a contested decision be altered is not a request to the Court to require EUIPO to do or to refrain from doing something, which would constitute a direction addressed to the latter. On the contrary, it is a request to the Court to decide, on the same basis as the Board of Appeal, whether the contested design must be declared invalid in the light of Article 25(1)(b) of Regulation No 6/2002. Such a decision is among the measures which, in principle, may be taken by the Court in the exercise of its power to alter decisions (see, by analogy, judgment of 7 February 2018, Packaging for ice-cream cornets, T‑794/16, not published, EU:T:2018:70, paragraph 86 and the case-law cited).

59      In the present case, it should be noted that the Board of Appeal adopted a position in the contested decision on whether or not considerations other than technical considerations had been taken into account in the creation of the contested design, with the result that the Court has the power to alter that decision in that regard.

60      It follows from paragraph 54 above that the Board of Appeal was required to find that two of the three features of appearance of the product concerned had not been solely dictated by the technical function of that product. Accordingly, it must be held, in view of all of the foregoing, that the conditions for the exercise of the Court’s power to alter decisions are satisfied, which the parties, moreover, confirmed at the hearing.

61      Consequently, it is necessary to alter the contested decision by rejecting the application for a declaration of invalidity of the contested design on the basis of Article 25(1)(b) of Regulation No 6/2002, read in conjunction with Article 8(1) of that regulation.

 Costs

62      Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Article 134(2) of those rules provides that where there is more than one unsuccessful party the Court is to decide how the costs are to be shared.

63      The applicant has claimed that EUIPO and the intervener should be ordered to pay the costs.

64      Since EUIPO has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the applicant.

65      Since the intervener has been unsuccessful, it must be ordered to bear its own costs.

On those grounds,

THE GENERAL COURT (Sixth Chamber)

hereby:

1.      Annuls the decision of the Third Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 15 February 2021 (Case R 2068/2019‑3);

2.      Rejects the application filed by Zaun Ltd on 27 March 2018 for a declaration that the design registered under the number 127204-0001 is invalid;

3.      Orders EUIPO to bear its own costs and to pay those incurred by Praesidiad Holding;

4.      Orders Zaun to bear its own costs.

Delivered in open court in Luxembourg on 19 October 2022.

*      Language of the case: English.

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