Corte di giustizia UE n. 6/2019

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 19 June 2019 ( * ) (Appeal — [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice — [OSCURATO:PERSONA] (CE) No 6/2002 — [OSCURATO:PERSONA] 6 — Community design — Ground for invalidity — No individual character — Representation of an electrically operated lifting column) [OSCURATO:PERSONA] C‑820/18 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 27 December 2018, Linak A/S, established in Nordborg (Denmark), represented by V. von Bomhard, Rechtsanwältin, and J. Fuhrmann, Rechtsanwalt, applicant, the other party to the proceedings being: [OSCURATO:PERSONA] (EUIPO) defendant at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of C. [OSCURATO:PERSONA] (Rapporteur), [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], M. Ilešič and I. Jarukaitis, Judges, [OSCURATO:PERSONA]: M. [OSCURATO:PERSONA], [OSCURATO:PERSONA]: A. [OSCURATO:PERSONA], having regard to the decision taken, after hearing the [OSCURATO:PERSONA], to give a decision by reasoned order in accordance with [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] makes the following [OSCURATO:PERSONA] 1 By its appeal, Linak A/S seeks to have set aside the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 18 October 2018, Linak v EUIPO — ChangZhou [OSCURATO:PERSONA] (Electrically operated lifting column) (T‑368/17, not published, ‘the judgment under appeal’, EU:T:2018:695), by which that [OSCURATO:PERSONA] dismissed its action against the decision of the [OSCURATO:PERSONA] of Appeal of the [OSCURATO:PERSONA] (EUIPO) of 21 March 2017 ([OSCURATO:PERSONA] R 1412/2015-3) concerning invalidity proceedings between Linak and ChangZhou [OSCURATO:PERSONA]. 2 In support of its appeal, the appellant relies on a single ground, alleging infringement of [OSCURATO:PERSONA] 6 of [OSCURATO:PERSONA] (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1). The appeal 3 [OSCURATO:PERSONA] 181 of its Rules of Procedure, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the [OSCURATO:PERSONA] may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the [OSCURATO:PERSONA], decide by reasoned order to dismiss that appeal in whole or in part. 4 That provision must be applied in the present case. 5 On 16 April 2019, the [OSCURATO:PERSONA] took the following position: ‘1.      By the first ground of appeal put forward in support of the appeal, the appellant submits that the [OSCURATO:PERSONA] erred in law in the interpretation of [OSCURATO:PERSONA] 6 of [OSCURATO:PERSONA] 6/2002. That plea may be subdivided into three limbs: 2.      For the reasons set out below, I propose that the [OSCURATO:PERSONA] should dismiss the appeal in the present case as being, in part, manifestly inadmissible and, in part, manifestly unfounded, and order the appellant to bear its own costs in accordance with [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA]. The first limb of the single ground of appeal alleging infringement of [OSCURATO:PERSONA] 6 of [OSCURATO:PERSONA] 6/2002 3.      By the first limb, which consists of two parts, the appellant submits, in substance, that the [OSCURATO:PERSONA], first, failed to take account, when identifying the relevant informed user in the present case, of the nature of the product to which the design applies or in which it is incorporated and of the industrial sector to which that product belongs, and, second, as a result of that fact wrongly held, on the facts of the present case, that the definition of such an informed user includes not only professionals but also end consumers. According to the appellant, electrically operated lifting columns are in fact goods destined not for an end consumer who purchases furniture, but for furniture manufacturers. 4.      With regard to the first part of the first limb, it should be noted that, contrary to the appellant’s submissions, the [OSCURATO:PERSONA] took into account the nature of the goods concerned and the industrial sector to which they belong when assessing the individual character of the design, which includes identifying the relevant informed user. 5.      With regard, in the first place, to the nature of the goods concerned, in paragraph 21 of the judgment under appeal the [OSCURATO:PERSONA] gave clear details of the goods at issue, namely electrically operated lifting columns. Furthermore, in identifying the relevant informed user in the present case, the [OSCURATO:PERSONA] specified, in paragraphs 29 and 30 of the judgment under appeal, the sources from which information on those goods can be obtained and stated that the goods are items which can also be intended for sellers and distributors as well as users purchasing them for their own needs. 6.      In the second place, as regards the industrial sector concerned, in paragraph 22 of the judgment under appeal the [OSCURATO:PERSONA] confirmed the [OSCURATO:PERSONA] of Appeal’s finding that in the present case that sector is the furniture industry. 7.      In those circumstances, it must be held that the first part of the first limb is manifestly unfounded. 8.      With regard to the second part of the first limb, by which the appellant criticises the [OSCURATO:PERSONA] identification of the relevant informed user in the present case, it must be noted, first, that the [OSCURATO:PERSONA], in paragraph 30 of the judgment under appeal, considered that such an informed user is both an end consumer who uses the electrically operated lifting columns for his own needs and a professional. 9.      Next, in paragraph 31 of the judgment under appeal, the [OSCURATO:PERSONA] stated that the fact that one of the two groups of informed users, in this case end consumers, perceives the designs in question as producing the same overall impression suffices for a finding that the design at issue lacks individual character. 10.      It is important to note in that regard that the appellant does not criticise the [OSCURATO:PERSONA] for having failed to carry out an assessment of the overall impression produced by the design at issue on professionals and for having considered instead that it is sufficient to carry out such an assessment as regards one of the two groups of informed users. The appellant’s complaint concerns its view that the [OSCURATO:PERSONA] erred in considering that the relevant informed user in the present case may be not only a salesperson or distributor but also an end consumer. 11.      However, the identification of the relevant informed user in concreto , in the present case, forms part of the assessment of the facts which, unless those facts have been distorted, lies outside the scope of the review by the [OSCURATO:PERSONA] (see, by analogy, order of 4 February 2016, Emsibeth v OHIM , C‑251/15 P, not published, EU:C:2016:83, paragraph 31). 12.      Since the appellant has not alleged distortion of the facts under the second part of the single ground of appeal, that part is therefore manifestly inadmissible. 13.      It follows that the first limb is in part manifestly unfounded and in part manifestly inadmissible. The second limb of the first ground of appeal, alleging infringement of [OSCURATO:PERSONA] 6 of [OSCURATO:PERSONA] 6/2002 14.      [OSCURATO:PERSONA] the second limb, the appellant criticises the [OSCURATO:PERSONA] for having given less weight to certain views of the design at issue which are not visible during the normal use of the goods. According to the appellant, it is clear from the case-law that all views of the design must be taken into account when assessing the overall impression produced by the design on the informed user. 15.      That line of argument is based on a selective and, accordingly, manifestly erroneous reading of the judgment under appeal. 16.      It is true that, in paragraph 43 of the judgment under appeal, the [OSCURATO:PERSONA] referred to the overall impression produced on the informed user by the design at issue when used in the usual manner, namely when it is incorporated into a table. 17.      However, in paragraph 44 of the judgment under appeal, the [OSCURATO:PERSONA] expressly stated that, even where the designs are observed from all possible angles, the overall impression remains the same, having regard to the coincidence of the main features of the designs at issue. 18.      Accordingly, the second limb must be dismissed as manifestly unfounded. The third limb of the single ground of appeal, alleging infringement of [OSCURATO:PERSONA] 6 of [OSCURATO:PERSONA] 6/2002 19.      By the third limb, the appellant criticises the [OSCURATO:PERSONA] for having confirmed, in paragraph 39 of the judgment under appeal, the [OSCURATO:PERSONA] of Appeal’s finding that the differences between the designs at issue must be obvious in order to produce a different overall impression. In so doing, the [OSCURATO:PERSONA] imposed a more stringent test than that provided for in [OSCURATO:PERSONA] 6 of [OSCURATO:PERSONA] 6/2002. 20.      That line of argument is based on a manifestly incorrect reading of the judgment under appeal and cannot succeed. 21.      It is true that, in paragraph 39 of the judgment under appeal, the [OSCURATO:PERSONA] confirmed the finding of the [OSCURATO:PERSONA] of Appeal that the minor differences between the designs at issue will not be ‘obvious’ to an informed user and that consequently the designs at issue are too similar to be able to produce a different overall impression on the informed user. 22.      However, it should be observed that the [OSCURATO:PERSONA], in paragraph 37 of the judgment under appeal, recalled that the only differences existing between the designs at issue, pointed out by the [OSCURATO:PERSONA] of Appeal, are in the details of the finish and the thickness of the housing placed on top of the telescopic arm, the diameter and the shape of the telescopic arm and the colour of the designs at issue. 23.      Subsequently, in paragraph 38 of the judgment under appeal, the [OSCURATO:PERSONA] held that those differences were not significant and did not affect the overall functioning or structure of the designs at issue. 24.      Finally, having regard to those considerations, the [OSCURATO:PERSONA] held in paragraph 38 of the judgment under appeal that the word ‘obvious’ had been used by the [OSCURATO:PERSONA] of Appeal to allude to the fact that the differences between the designs at issue were not ‘sufficiently marked or significant’. 25.      Accordingly, with regard to the nature of the differences between the designs at issue which makes it possible to recognise the individual character of a design and, contrary to the appellant's submissions, the [OSCURATO:PERSONA] did not impose any criterion based on their obvious character in the exact meaning of the term. 26.      In consequence, the third part of the single ground of appeal must be rejected as manifestly unfounded. 27.      In the light of the foregoing, I consider that the single ground of the appeal must be rejected as being, in part, manifestly inadmissible and, in part, manifestly unfounded and, as a consequence, the appeal must be dismissed in its entirety. 28.      I therefore propose that the [OSCURATO:PERSONA] dismiss the appeal, in accordance with [OSCURATO:PERSONA] 181 of the Rules of Procedure, as, in part, manifestly inadmissible and, in part, manifestly unfounded, and that the appellant be ordered to bear its own costs.’ 6 For the same reasons as those given by the [OSCURATO:PERSONA], the appeal must be dismissed as, in part, manifestly inadmissible and, in part, manifestly unfounded. Costs 7 [OSCURATO:PERSONA] 137 of the Rules of Procedure, applicable to appeal proceedings by virtue of [OSCURATO:PERSONA] 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. Since in this case the present order has been adopted before the appeal was served on the other parties and, consequently, before those parties could have incurred costs, the appellant must be ordered to bear its own costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The appeal is dismissed as being, in part, manifestly inadmissible and, in part, manifestly unfounded. 2. Linak A/S shall bear its own costs. Luxembourg, 19 June 2019. A. [OSCURATO:PERSONA] C. [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] * Language of the case: English.