Orgatex GmbH & Co. KG v European Union Intellectual Property Office (T-25/23)

Contents

Judgment of the General Court (Sixth Chamber)23 October 2024^note(Community design — Invalidity proceedings — Registered Community design representing floor markings — Articles 3(a) and 25(1)(a) of Regulation (EC) No 6/2002 — Unicity of the design — Consistency of views)In Case T‑25/23,Orgatex GmbH & Co. KG, established in Langenfeld (Germany), represented by G. Jacobs, M. Maybaum and M. Dümenil, lawyers,vEuropean Union Intellectual Property Office (EUIPO), represented by E. Markakis, acting as Agent,the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, beingLawrence Longton, residing in Brindle (United Kingdom), represented by A. Haberl, lawyer,THE GENERAL COURT (Sixth Chamber),composed of M.J. Costeira, President, M. Kancheva (Rapporteur) and E. Tichy-Fisslberger, Judges,Registrar: R. Ūkelytė, Administrator,having regard to the written part of the procedure,further to the hearing on 17 January 2024,gives the following

Judgment

1By its action under Article 263 TFEU, the applicant, Orgatex GmbH & Co. KG, seeks annulment of the decision of the Third Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 17 November 2022 (Case R 110/2022-3) (‘the contested decision’).

Background to the dispute

2On 23 October 2020, the intervener, Mr L. Longton, applied to EUIPO for a declaration of invalidity of the Community design registered under number 1112155-0001 and published on 14 April 2009, following an application filed on 25 March 2009. The applicant is the owner of the contested design, the registration of which it renewed in 2014, 2019 and 2024.

3The contested design is shown in the following views:|View 1.1 | View 1.2|View 1.3 | View 1.4– View 1.1:– View 1.2:– View 1.3:– View 1.4:

4The goods in which the contested design is intended to be incorporated fall within Class 20.03 of the Locarno Agreement of 8 October 1968 establishing an International Classification for Industrial Designs, as amended, and correspond to the following indication: ‘Floor markings’.

5The grounds relied on in support of the application for a declaration of invalidity were those referred to in Article 25(1)(a) 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 3(a) of that regulation, and in Article 25(1)(b) of that regulation, read in conjunction with Articles 4 and 6 of that regulation.

6On 23 November 2021, the Cancellation Division dismissed the application for a declaration of invalidity. In essence, it found that the contested design was unique and that its views were consistent. In that respect, it found that the subject matter of the protection was clearly identifiable and appeared in a unified and direct manner in the four views filed, namely view 1.1, representing the top view (upper side), and the other views 1.2, 1.3 and 1.4, representing the bottom views (lower side) of the floor markings. It also found that the design had an individual and novel character.

7On 18 January 2022, the intervener lodged an appeal with EUIPO against the Cancellation Division’s decision.

8By the contested decision, the Board of Appeal allowed the appeal, annulled the decision of the Cancellation Division and declared the contested design invalid. In particular, it held that the views filed were not conclusive and presented at least two different designs. First, it considered that the intervener’s assumption that views 1.1 and 1.2 showed the front face and views 1.3 and 1.4 the rear face seemed logical in itself and consistent with general experience. It considered that views 1.1 and 1.2 and views 1.3 and 1.4 could not represent the same design. Secondly, even accepting the assumption of the Cancellation Division and the applicant that view 1.1 showed the front face and views 1.2, 1.3 and 1.4 the rear face, it held that views 1.2, 1.3 and 1.4 could not represent the same design. It found that it was apparent from the two hypotheses examined that the contested design had been registered in breach of Article 3(a) of Regulation No 6/2002.

9The Board of Appeal also held that, since the contested design was to be declared invalid pursuant to Article 25(1)(a) of Regulation No 6/2002, read in conjunction with Article 3(a) of that regulation, it was not possible to examine whether that design also lacked individual character or novelty on the basis of Article 25(1)(b) of that regulation, read in conjunction with Articles 4 to 6 of that regulation.

Forms of order sought

10The applicant claims that the Court should:– annul the contested decision;– order EUIPO to pay the costs of the proceedings before the Court and before the Board of Appeal.

11EUIPO contends that the Court should:– dismiss the action;– order the applicant to pay the costs if a hearing is held;

12The intervener contends that the Court should:– dismiss the action;– order the applicant to pay the costs.

Law

Admissibility of the action

13Without formally raising a plea of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court, the intervener argues in his reply that the action is inadmissible on the ground that it was not brought within the prescribed period. More specifically, he contends that, according to the applicant itself, the contested decision, dated 17 November 2022, was notified to it on 18 November 2022. The present action did not reach the Court until 27 January 2023, that is to say, after expiry of the two-month time limit for bringing an action laid down in Article 61(5) of Regulation No 6/2002. The time limit for bringing an action was therefore not observed.

14In that regard, it should be borne in mind that, under Article 61(5) of Regulation No 6/2002, an action against a decision of a Board of Appeal of EUIPO must be brought before the Court within two months of notification of that decision.

15Furthermore, it is apparent from Article 60 of the Rules of Procedure that the procedural time limits for actions brought before the General Court are extended on account of distance by a single period of 10 days. According to the case-law, the time limit on account of distance, laid down in that article, applies to the bringing of an action against a decision of EUIPO (see judgment of 1 December 2021, Inditex v EUIPO – Ffauf Italia (ZARA), T‑467/20, not published, EU:T:2021:842, paragraph 32 and the case-law cited).

16In the present case, the contested decision was notified to the applicant on 18 November 2022. The time limit for bringing an action therefore expired at midnight on 30 January 2023, including the time limit for distance, in accordance with the rules for calculating time limits laid down in Article 58 of the Rules of Procedure.

17The present action was brought by the applicant on 27 January 2023.

18The plea of inadmissibility raised by the intervener should therefore be rejected and the present action declared admissible.

Admissibility of documents produced for the first time before the Court

19The intervener maintains that the photographs of the original or actually marketed product submitted by the applicant ‘by way of illustration’ in Annex A7 to the application are out of time and inadmissible.

20In that regard, it should be noted that those documents are not part of the file in the administrative proceedings before EUIPO and are being produced for the first time before the Court.

21The purpose of an action before the Court is to review the legality of decisions of the Boards of Appeal of EUIPO within the meaning of Article 61 of Regulation No 6/2002, so that the function of the Court is not to re-examine the factual circumstances in the light of documents submitted to it for the first time (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).

22Those documents should therefore be excluded as inadmissible, without it being necessary to examine their probative value.

The merits of the single plea in law

23In support of its action, the applicant relies on a single plea in law alleging infringement of Article 25(1)(a) of Regulation No 6/2002, read in conjunction with Article 3(a) of that regulation.

24The applicant complains that the Board of Appeal wrongly held that the contested design did not satisfy the requirements of Article 3(a) of Regulation No 6/2002 on the ground that the views showed at least two different designs because of alleged insoluble inconsistencies between the views and that there was therefore no unitary product within the meaning of that article. In its view, those alleged insoluble inconsistencies can be resolved if that regulation is not given a ‘legally erroneous and anti-registration interpretation’. It argued that it was unequivocal from all four views 1.1 to 1.4 that it was a unitary object, consisting of a frame element with an inner part, one side of which had contour lines in relation to the other side. It therefore submits that a unitary design can clearly be identified from the views of the contested design, which has the appearance of a single product for the purposes of that article.

25First, the applicant alleges that the Board of Appeal’s first assumption, set out in paragraphs 34 to 38 of the contested decision, that views 1.1 and 1.2 show the front and views 1.3 and 1.4 the rear, is incorrect and erroneous. According to the applicant, the Board of Appeal interpreted those views in such a way as to ‘necessarily lead to invalidity’, whereas it would be more appropriate, as a principle of interpretation, to assume, in favour of the applicant, that he wished to file a valid application which was not devoid of meaning. In the present case, however, it would be obvious that view 1.1 shows one side of the product and views 1.2, 1.3 and 1.4 show the other side of the product, having regard to the contour lines. Given that principle of interpretation, there would be no insoluble inconsistency in the difference between views 1.1 and 1.2. That difference could be easily resolved by interpreting the views as reproducing the design on one side (for view 1.1) and on the other (for views 1.2, 1.3 and 1.4).

26Secondly, the applicant also criticises the Board of Appeal for drawing incorrect conclusions from its second hypothesis, set out in paragraphs 39 to 44 of the contested decision, according to which view 1.1 shows the front and views 1.2, 1.3 and 1.4 show the rear. That assumption is admittedly accurate and correct, but it does not give rise to any insoluble inconsistency between those views.

27In that regard, in the first place, the applicant claims that there is no insoluble inconsistency as a result of the shading (shadow effects) in views 1.2, 1.3 and 1.4. In its view, the interpretation shows that those views reproduce different shading (shadow effects) of one and the same surface of the same product, due to different lighting conditions. Such differences in lighting result from the angle and position from which the picture was taken. First, the applicant claims that there is no inconsistency due to the position of the shot, with view 1.2 showing the product against the light and view 1.4 showing it illuminated. An identical product is simply shown under different lighting conditions. Secondly, it argues that there is no inconsistency due to the alleged absence of a light source. It is normal for shading to be used in computer-generated representations and that are simulated with a virtual light source. Thirdly, it submits that there is no inconsistency due to lighting effects. In the second place, the applicant claims that there is no insoluble inconsistency due to the contour lines in views 1.2 and 1.4. Only one product is identifiable. In the third place, the applicant claims that there is no insoluble inconsistency as regards the ‘depth’ of the contour lines in views 1.2 and 1.4 in relation to view 1.3. The discrepancy is easily explained by the perspective presentation. In the fourth place, the applicant claims that there is no insoluble inconsistency due to the shading (shadow effects) of the ‘window’ or ‘interior’ in views 1.2 and 1.4 compared with view 1.3. That interior is a window in the floor marking, which is used to insert various inserts. The differences are also due to the different perspectives from which the shots were taken. Views 1.2 and 1.4 show the product standing, almost as seen through the transparent window, in a plain white, whereas view 1.3 shows the product lying on a virtual surface, with shading. That shading is due to different lighting effects and has no effect on the shape and configuration of a product.

28The applicant concludes that, in any event, it is apparent from the interpretation of the views that the alleged differences, due in particular to shading (shadow effects), must not be taken into account in order to determine the subject matter of the protection, which is obvious and clearly visible. There is only one product and therefore only one valid design within the meaning of Article 3(a) of Regulation No 6/2002.

29At the hearing, the applicant argued more specifically that there existed under EU law a ‘principle of interpretation favourable to the registration’ of a Community design, resulting from the ‘fundamental concept’ of Regulation No 6/2002, in particular recital 24 thereof.

30EUIPO and the intervener contest the applicant’s arguments.

Relevant legislation and case-law

31Pursuant to Article 25(1)(a) of Regulation No 6/2002, a Community design is to be declared invalid if it does not correspond to the definition in Article 3(a) of that regulation, according to which ‘design’ means ‘the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation’.

32It follows that, in the system laid down by Regulation No 6/2002, appearance is the decisive factor for a design (judgments 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 62; of 8 March 2018, DOCERAM, C‑395/16, EU:C:2018:172, paragraph 25, and of 28 October 2021, Ferrari, C‑123/20, EU:C:2021:889, paragraph 30).

33The examination of a design under Article 3(a) of Regulation No 6/2002 is limited to the question whether the representation shows the appearance of a product or part of a product. If, in the course of the examination, EUIPO finds that the design for which protection is sought does not comply with the definition referred to in that article and the ground for rejection is not remedied within the time limit, EUIPO is to reject the application, in accordance with Article 47(1) of that regulation and Article 11(3) of Commission Regulation (EC) No 2245/2002 of 21 October 2002 implementing Council Regulation (EC) No 6/2002 (OJ 2002 L 341, p. 28).

34The examination of a design under Article 3(a) of Regulation No 6/2002 must be carried out on the basis of the representation entered in the register, namely the views filed at the time of the application for registration, which determine the subject matter and scope of the protection (see, to that effect, judgment of 21 June 2017, Kneidinger v EUIPO – Topseat International (Toilet lid), T‑286/16, not published, EU:T:2017:411, paragraph 44). Observations made by the applicant or holder during the proceedings may, in principle, be taken into account only if they are apparent from the representation of the design.

35Pursuant to Article 36(1)(c) of Regulation No 6/2002 and Article 1(1)(c) of Regulation No 2245/2002, an application for a registered Community design must contain a representation of the design suitable for reproduction.

36Having regard to the literal, teleological and contextual analysis of Article 36(1)(c) of Regulation No 6/2002, the representation of a design for which registration is sought must enable that design, which is the subject of the protection sought by that application, to be clearly identified (judgment of 5 July 2018, Mast-Jägermeister v EUIPO, C‑217/17 P, EU:C:2018:534, paragraph 60). In particular, the function of the requirement of representation is, inter alia, to define the design itself in order to determine the exact subject matter of the protection conferred on its holder by the registered design, as regards the competent authorities and economic operators (see, to that effect, judgment of 5 July 2018, Mast-Jägermeister v EUIPO, C‑217/17 P, EU:C:2018:534, paragraphs 52 and 53 and the case-law cited; see also judgment of 28 October 2021, Ferrari, C‑123/20, EU:C:2021:889, paragraph 39 and the case-law cited).

37First, the competent authorities must know clearly and precisely the nature of the constituent elements of a design in order to be able to fulfil their obligations relating to the prior examination of applications for registration and the publication and maintenance of an appropriate and accurate register of designs. Secondly, economic operators must be able to ascertain clearly and accurately what registrations have been carried out or what applications for registration have been made by their current or potential competitors, and thus benefit from relevant information concerning the rights of third parties. The purpose of such a requirement of clarity and precision is therefore to ensure the legal certainty of third parties (see judgment of 2 March 2023, Papierfabriek Doetinchem, C‑684/21, EU:C:2023:141, paragraph 28 and the case-law cited).

38Since the representation of a design for which registration is sought must enable that design, which is the subject of the protection sought by that application, to be clearly identified (see paragraph 36 above), it is necessary, in particular, to examine whether the views constituting the representation as a whole show the appearance of a single or unitary product, that is to say, whether there is unicity of design.

39In that regard, the requirement that the views be consistent implies that all the views show the appearance of one and the same product (or part of a product), so that they enable one and the same design to be clearly identified. Inconsistencies or contradictions between the filed views may lead to the conclusion that the representation shows different products, and therefore more than one design. The views relate to more than one design in particular when they constitute different embodiments or versions of the same concept, or when the use of the lines intended to identify the design or the use of the disclaimers of certain features is not consistent throughout the views.

40There can be no unicity of design if the views constituting the representation as a whole are insolubly inconsistent or insurmountably contradictory, so that the appearance of a single product cannot be determined and, consequently, the representation does not allow a single design to be clearly identified. Conversely, the unicity of the design may be established despite minor discrepancies between the views, strictly to the extent that those views can nevertheless be reconciled in the sense of a unitary design. That being the case, the adjudicating bodies of EUIPO are not obliged to consider all possible combinations between the views provided by the applicant at the time of the application, but only those combinations which seem logical and plausible in the light of common experience.

41A design which does not constitute a unitary object does not meet the definition laid down in Article 3(a) of Regulation No 6/2002 and must therefore be refused registration pursuant to Article 47(1) of that regulation (see paragraph 33 above), or declared invalid if the ground for invalidity set out in Article 25(1)(a) of that regulation has been properly invoked (see, to that effect, judgment of 13 June 2017, Ball Beverage Packaging Europe v EUIPO – Crown Hellas Can (Cans), T‑9/15, EU:T:2017:386, paragraphs 57 and 60).

42By contrast, the examination of the ground of invalidity set out in Article 25(1)(a) of Regulation No 6/2002 does not concern the formal requirements of the representation. In that regard, Article 4(2) of Regulation No 2245/2002 provides, inter alia, that the representation may not contain more than seven views. Defects relating to that requirement, which the applicant fails to remedy within the prescribed period, will result in rejection of the application pursuant to Articles 45(2)(b) and 46(3) of Regulation No 6/2002.

43Article 4 of Regulation No 2245/2002 expressly authorises the filing of several views of the same design. The applicant is free to choose which illustrations to submit and whether the views submitted are photographs of the actual object, technical drawings or computer-generated representations. The views submitted may show the design from different angles and perspectives, including at different scales. However, in view of the requirement that the views be consistent (see paragraph 39 above), the applicant is obliged to ensure that the views are consistent, namely that they can be reconciled in the sense of a unitary design (see paragraph 40 above) and therefore clearly identify one and the same design.

44It is in the light of those principles that it is necessary to consider whether the views filed in the present case are consistent and therefore clearly identify one and the same design.

Assessment of the consistency of the views in the present case

–The alleged existence of a principle of interpretation favourable to applicants for and holders of a registered Community design

45As a preliminary point, it is necessary to examine the applicant’s complaint, which is based, in essence, on an error of law, according to which the Board of Appeal should have taken account of a principle of interpretation favourable to applicants for and holders of a registered Community design, which the applicant alleges exists under EU law and which results from the ‘fundamental concept’ of Regulation No 6/2002.

46In that regard, it should be borne in mind that, even assuming that the examiner had decided, during the registration procedure, to register the contested design, that position is not binding on the Board of Appeal in invalidity proceedings concerning that design (see, to that effect, judgment of 13 June 2017, Cans, T‑9/15, EU:T:2017:386, paragraph 54).

47That is so even if, in the context of the examination provided for in Article 47(1) of Regulation No 6/2002, the examiner must already verify that the design which is the subject of an application for protection meets the definition referred to in Article 3(a) of that regulation and, consequently, presents a unicity due to the consistency of its views, unlike the conditions for protection, such as novelty or individual character under Articles 4 to 6 of that regulation, which are not examined in that context.

48It should also be emphasised that nothing in Regulation No 6/2002 requires a principle of interpretation favourable to the applicant for a registered Community design in examination proceedings or to the holder of such a design in invalidity proceedings, as in the present case.

49Recital 24 of Regulation No 6/2002, relied on by the applicant, states simply that one of the fundamental objectives of that regulation is that the procedure for obtaining a registered Community design should present the minimum cost and difficulty to applicants, so as to make it readily available to small and medium-sized enterprises as well as to individual designers. It must be stated that the low-cost, user-friendly nature of the registration procedure in no way prejudices the principle of interpretation in favour of the applicant for a registered Community design in an examination procedure or the holder of such a design in invalidity proceedings.

50On the contrary, since a registered Community design enjoys, by virtue of Article 85(1) of Regulation No 6/2002, a presumption of validity in infringement proceedings, it is all the more important that its validity should be assessed specifically and strictly in invalidity proceedings before EUIPO and in counterclaims before the Community design courts provided for in Article 24(1) of that regulation, in accordance with the grounds of invalidity set out in Article 25(1) of that regulation and the conditions for those invoking those grounds laid down in Article 25(2) to (4) of that regulation.

51Moreover, for reasons of legal certainty and sound administration, the examination of any application for a declaration of invalidity of a registered Community design must be strict, in each specific case, in order to avoid registrations being maintained unduly. The continued registration of a design depends on objective and specific criteria, applicable in the context of the factual circumstances of the case, intended to verify whether the design at issue does not fall within a ground for invalidity (see, to that effect and by analogy, judgment of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraph 77 and the case-law cited).

52It follows that, in proceedings for a declaration of invalidity of a registered Community design, there is no principle of interpretation favourable to the holder of that design.

53Consequently, in the present case, the Board of Appeal did not have to, and indeed could not, take account of such a principle of interpretation favourable to the applicant as holder of the contested design.

54The applicant’s complaint that, in essence, it erred in law in that regard must therefore be rejected.

55In the present case, the applicant claims, in essence, that it is clearly possible to identify a unitary design in the views of the contested design, which are consistent. The following complaints are therefore based on alleged errors of assessment of the facts by the Board of Appeal.

56The two possible combinations of views adopted by the Board of Appeal should be examined in turn.

–The hypothesis that views 1.1 and 1.2 show the front face and views 1.3 and 1.4 the rear face of the contested design

57In paragraphs 34 to 38 of the contested decision, the Board of Appeal considered that the hypothesis that views 1.1 and 1.2 showed the front face and views 1.3 and 1.4 the rear face corresponded to that of the intervener and that that hypothesis seemed ‘inherently logical and consistent with general experience’. Thus, two views, a top view and a perspective view, each represented the front and rear faces of the design.

58Admittedly, the different representation of the shading could be explained by the difference in angles. However, it was not possible to explain the fact that there were no contour lines in view 1.1, whereas these were clearly visible in view 1.2.|Detailed view of the top right-hand corner – View 1.1 | Detailed view of the top right-hand corner – View 1.2

59The same was true of views 1.3 and 1.4. Whereas in view 1.3, the lines were faintly visible, they were clearly visible in view 1.4. In fact, they were so clear that they looked like ‘dotted lines’.|Detailed view of the top right-hand corner – View 1.3 | Detailed view of the top right-hand corner – View 1.4

60As regards those two points of view, the Board of Appeal considered that the difference in shading could not be explained solely by the difference in perspective. In its view, given the absence of a light source, the difference could not have resulted from the reflection of light from the surface.

61The Board of Appeal concluded that views 1.1 and 1.2, on the one hand, and views 1.3 and 1.4, on the other hand, could not therefore represent the same design, with the result that the contested design had been entered in the register in breach of Article 3(a) of Regulation No 6/2002.

62The applicant alleges that the Board of Appeal erred in its assessment by considering that views 1.1 and 1.2 showed the front and views 1.3 and 1.4 the rear. According to the applicant, the Board of Appeal interpreted the views in a manner which ‘necessarily leads to invalidity’.

63At the outset, it should be noted, as did the Board of Appeal, that the fact that views 1.1 and 1.2 show the front face and views 1.3 and 1.4 the rear face, each with a top view and a perspective view, seems logical and plausible in the light of common experience (see paragraph 40 above).

64Next, it should be noted that in views 1.1 and 1.2, the framing elements of the floor markings have similar dark colours, whereas in views 1.3 and 1.4, the framing elements have lighter colours. The choice of perspective also leads to the assumption that views 1.1 and 1.2 are intended to show the front from two different angles, on the one hand, and views 1.3 and 1.4 the rear from those two angles, on the other. The applicant’s assumption that views 1.2 and 1.4 both show the rear face from the same perspective is hardly logical or plausible, as it fails to explain why a face would be shown twice from the same perspective and yet views 1.2 and 1.4 are different.

65In addition, the difference in colour of the inner ‘window’ between views 1.1 and 1.2 and between views 1.3 and 1.4 could possibly be explained by the fact that that inner window of the floor markings includes a transparent tile that is only visible from a side perspective view. However, in the context of that first assumption, it is impossible to explain the fact that view 1.1 does not show any contour lines between the framing elements. Nevertheless, those contour lines are clearly visible in view 1.2. Views 1.1 and 1.2 therefore present an insoluble inconsistency.View 1.1 | View 1.2|

66That observation also applies to views 1.3 and 1.4. Whereas in view 1.3 the contour lines are barely visible on the right-hand side, both in the front and rear sections, in view 1.4 they are clearly visible and extend along the entire length of the side frame sections and the inside of the top and bottom frame sections. In view 1.4, the inner window is clearly framed by contour lines. Views 1.3 and 1.4 therefore present an insoluble inconsistency.View 1.3 | View 1.4|

67reover, like the Board of Appeal in paragraph 37 of the contested decision, it must be held that, in the absence of a light source, the difference in shade between views 1.3 and 1.4 cannot be explained solely by the difference in perspective between an oblique side view in view 1.3 and a plan view in view 1.4. Even assuming that the lighting is different, it is not possible to explain the different colour gradation in view 1.3, which changes from a light grey in the lower left to a darker grey in the upper right, and view 1.4, which changes from a light grey throughout the upper part to a darker grey in the lower part. The applicant fails to explain the position of the alleged virtual light source. Views 1.3 and 1.4 therefore present an insoluble inconsistency.

68Lastly, the applicant’s allegation, in response to a question from the Court at the hearing, that views 1.2, 1.3 and 1.4 have in common on the rear face removable sheets for the floor marking sticker, which are not visible in view 1.1, is not clear from the views filed when the application for registration was made, as required by the case-law referred to in paragraph 34 above, and cannot therefore succeed.

69In paragraphs 34 to 38 of the contested decision, therefore, the Board of Appeal was right to examine the unicity of the representations of the contested design on the assumption that views 1.1 and 1.2 showed the front of that design and views 1.3 and 1.4 its rear, and to find that those views presented insoluble inconsistencies.

70It must be concluded that views 1.1 and 1.2 and views 1.3 and 1.4 do not show a unitary design, with the result that the contested design has been entered in the EUIPO register in breach of Article 3(a) of Regulation No 6/2002.

71For the sake of completeness, the Court considers it appropriate also to examine the assessments of the Board of Appeal relating to the second hypothesis relating to combination between the views, since that hypothesis is relied on by the applicant as being more favourable to it.

–The hypothesis that view 1.1 shows the front face and views 1.2, 1.3 and 1.4 the rear face of the contested design

72In paragraphs 39 to 44 of the contested decision, the Board of Appeal noted that the Cancellation Division and the applicant assumed that view 1.1 showed the front face and views 1.2, 1.3 and 1.4 the rear face. It therefore decided to examine the action also on the basis of that premiss, even though there was no basis for concluding categorically that that interpretation of the contested design was the only correct one.

73First of all, the Board of Appeal noted that views 1.2 and 1.4 were images seen from above (top views) and noted that it was irrelevant whether they were the front or the back of the floor markings. Contrary to the assumption of the Cancellation Division and the applicant, it considered that the different shading could not be attributed to different lighting conditions due to the angle of view, as the two photos had been taken from above. In its view, view 1.3 reproduced the design in an additional shade that was not necessarily due to the angle.| |Detailed view of the top right-hand corner – View 1.2 | Detailed view of the top right-hand corner – View 1.3 | Detailed view of the top right-hand corner – View 1.4

74In that regard, the Board of Appeal noted that there was no light source which would prevent a different reproduction of one and the same colour. It followed, in its view, that three different shades had been used in the three illustrations.

75Next, the Board of Appeal noted that the lines in views 1.2 and 1.4 had different shapes. Whereas the line was continuous in view 1.2, it was dotted in view 1.4.|Detailed view of the top right-hand corner – View 1.2 | Detailed view of the top right-hand corner – View 1.4

76In addition, the Board of Appeal noted that, in views 1.2 and 1.4, the lines all had the same depth. That was not the case in view 1.3, where the lines at the left-hand corners were more visible than those at the right-hand corners.View 1.3

77According to the Board of Appeal, if the lines or contours were represented in a perspective view, the more distant lines or contours could be less visible in certain circumstances. There was therefore, in its view, an insoluble inconsistency also in that regard.

78Finally, the Board of Appeal found inconclusive the reasons why the interior showed dark shades in view 1.3, whereas in views 1.2 and 1.4, which also showed the contested design seen from behind, the interior appeared transparent or white.

79The Board of Appeal concluded that views 1.2, 1.3 and 1.4 could not therefore represent the same design, with the result that the contested design had been entered in the register in breach of Article 3(a) of Regulation No 6/2002.

80In that regard, it must be stated at the outset that the second hypothesis relating to combination between the views, which the applicant relies on as being more favourable to it, is hardly logical or plausible in the light of common experience. Unless there are specific circumstances, which have not been demonstrated and are not present in this case, it seems illogical and implausible to show a single view of the front face and three views of the rear face.

81In so far as the applicant claims, in essence, that a principle of interpretation favourable to the applicant when registering a design requires the adjudicating bodies of EUIPO, when examining the possible combinations of views, to assume that that applicant intended to file a valid application which is not devoid of meaning (see paragraph 25 above), it should be noted, first of all, that in proceedings for a declaration of invalidity of a registered Community design there is no principle of interpretation favourable to the holder of that design (see paragraph 52 above) and, moreover, that those bodies are not obliged to consider all the possible combinations between the views provided by the applicant in the application for registration, but only those combinations which seem logical and plausible in the light of common experience (see paragraph 40 above).

82In the present case, therefore, EUIPO was not obliged to consider that second hypothesis relating to combination of views.

83In any event, it should be noted that even that second hypothesis leads to insoluble inconsistencies between the views and that the applicant’s allegations must also be rejected for the following reasons.

84In the first place, the applicant submits that the Board of Appeal’s second hypothesis, according to which view 1.1 shows the front face and views 1.2, 1.3 and 1.4 the rear face, is admittedly correct, but does not result in an insoluble inconsistency between those views. It argues that there is no insoluble inconsistency due to the shading (shadow effects) in views 1.2, 1.3 and 1.4, nor due to the alleged absence of a light source, or due to lighting effects. It considers, in essence, that there was a virtual light source.

85In that regard, it should be noted, first, that the applicant has not provided any evidence that, in a virtual environment, there must always be a light source capable of producing corresponding effects. In the absence of evidence to the contrary, it must be assumed, as the Board of Appeal did, that there was no light source. For that reason, the Board of Appeal ruled out the possibility that the differences in the shade and brightness of the frame (views 1.2, 1.3 and 1.4 in the second case) could be explained by a light effect or by the different positions and angles of the views.

86Next, it must be stated, in agreement with the Board of Appeal, that the differences in shading (shadow effects) cannot be attributed to different lighting conditions due to the angle at which the photograph was taken, since views 1.2 and 1.4 were both taken from above (same angle of view), whereas view 1.3 shows the design in a different shading, darker on the inside, which cannot be due to the angle at which the photograph was taken. Thus, assuming that those two views both show the rear face, views 1.2 and 1.4 represent the same perspective (top view), whereas view 1.3 represents the design seen from the side, slightly obliquely. Furthermore, the Board of Appeal rightly observed, without the applicant contesting it, that views 1.2, 1.3 and 1.4 each show different colour configurations of the framing elements.View 1.3View 1.2 | View 1.4|

87In addition, it should be noted that, while the framing elements show different shading (shadow effects) or colours in views 1.2, 1.3 and 1.4, in views 1.2 and 1.4 the transparent inner window is shown in the same way, namely in white. The applicant fails to explain that inconsistency. According to its explanations, the different shading (shadow effects) of the framing elements result from the different position of an alleged light source. However, that would mean that the transparent inner window would also have different shading (shadow effects). In particular, in view 1.4, illumination from above should lead to a reflection on the transparent inner tile which, in view of the chosen form of representation, produced by means of a computer drawing, should result in a darker shade of that tile.

88Accordingly, it should be noted that different light sources, assuming they exist, do not explain why the transparent tile inside the contested design is shown identically in white in views 1.2 and 1.4, or why the existence of a different light source has not altered the thickness of the contour lines, which are visible in the same way in views 1.2 and 1.4.

89It is apparent from the assessments made in paragraphs 37 and 40 of the contested decision (see paragraphs 60 and 74 above) that the Board of Appeal would not have classified those differences as insoluble inconsistencies or insurmountable contradictions if it had had the slightest indication that those discrepancies constituted mere effects of light. That is so even if minor discrepancies between the views do not prevent a finding that a design is unique, in so far as those views can nevertheless be reconciled in the sense of a unitary design (see paragraph 40 above). In the present case, however, such a finding of unicity is precluded by that board’s finding that there was no light source.

90Accordingly, the finding of the Board of Appeal that the different shading (shadow effects) in views 1.2, 1.3 and 1.4 cannot be attributed to a light source, possibly a virtual one, but that three different shades of grey were used in those views, must be upheld.

91That finding cannot be refuted by the applicant’s other allegations.

92It should therefore be noted that the print-outs included in the application are not comparable to the flat floor markings shown in the contested design. Those print-outs have a highly structured surface, whereas the floor markings are only of low height, so that a variation in the angle of illumination could not produce the effect shown in views 1.2, 1.3 and 1.4.

93Similarly, the comparison of the contested design with photographic views of a screen put forward by the applicant is irrelevant. In the case of a photograph, specialist circles know that differences such as the reflection of the light source used result directly from the choice of that method of representation. By contrast, in the case of a computer-generated image, those same circles also know that no light source is needed to create it and that, unlike a photograph, such a computer-generated image does not require exposure. To that extent, the applicant’s allegation that, in essence, the differences in shading in views 1.2, 1.3 and 1.4 are attributable to different light sources is unfounded.

94It follows that there is an insoluble inconsistency due to the differences in shading (shadow effects) and luminosity in views 1.2, 1.3 and 1.4.

95In the second place, the applicant alleges that there is no insoluble inconsistency as a result of the contour lines in views 1.2 and 1.4 and that only one product is identifiable.

96In that regard, it must be noted, as did the Board of Appeal, that, in views 1.2 and 1.4, the contour lines have different shapes. While the line is continuous in view 1.2, it is dotted in view 1.4.View 1.2 | View 1.4|

97Like the Board of Appeal, it should also be noted that, in views 1.2 and 1.4, the contour lines are visible with the same intensity. By contrast, that is not the case in view 1.3, where the contour lines of the left-hand corners are more visible than those of the right-hand corners.View 1.3

98Even allowing for the fact that more distant contour lines may be less visible due to distance, that is not consistent with the contour lines shown in view 1.3. The contour line at the bottom right, which is closest to the viewer’s point of view, is less pronounced than the contour line at the top left, which is furthest from the viewer.

99It should therefore be noted that the contour lines of views 1.2, 1.3 and 1.4 differ from one another in ways that cannot be explained either by a different perspective or by a different lighting angle.

100Those findings cannot be called into question by the applicant’s argument concerning the photographs of the original product or of the product actually marketed which are presented ‘by way of illustration’.

101In that regard, apart from the fact that the documents in Annex A7 to the application are inadmissible (see paragraphs 19 to 22 above), it should be borne in mind that the examination of a design must be carried out on the basis of the representation recorded in the register, namely the views filed at the time of the application for registration. The applicant’s observations can only be taken into consideration if they are apparent from the representation of the design (see paragraph 34 above).

102Accordingly, in the present case, the applicant’s allegation that the contested design has transparent adhesive strips on the rear border elements of a floor marking and that the difference in intensity of the contour lines is due to those transparent adhesive strips cannot be taken into account, since such a circumstance is not apparent from the representation of the contested design. The alleged adhesive strips do not appear in any of the four views of the design. Nor is there any description which might support such a hypothesis. The fact that the contour lines are due to adhesive strips on the framing elements of the design is therefore by no means obvious and that allegation cannot succeed.

103Furthermore, while it is certainly true that products actually marketed which correspond to a design may be taken into account in assessing the overall impression, that should not, however, serve as a basis for assessing the overall impression, but only to confirm an assessment based on the representations entered in the register. Comparison with products actually marketed can be used only for illustrative purposes to confirm conclusions already drawn (see, to that effect, judgment of 20 October 2011, PepsiCo v Grupo Promer Mon Graphic, C‑281/10 P, EU:C:2011:679, paragraph 74).

104Finally, in the present case, it is not a question of assessing whether two conflicting designs produce the same overall impression on the informed user by taking account of the products actually marketed, but of determining whether a design has unicity or a unitary character on the basis of the representation entered in the register. Consequently, insoluble inconsistencies between registered views cannot be overcome by comparison with products allegedly on the market.

105It follows that there is an insoluble inconsistency due to the contour lines in views 1.2 and 1.4, on the one hand, and view 1.3, on the other hand, as well as between views 1.2 and 1.4 themselves.

106In the third place, the applicant claims that there is no insoluble inconsistency as regards the ‘depth’ of the contour lines in views 1.2 and 1.4 compared with view 1.3. In its view, the Board of Appeal should have recognised that the discrepancy was easily explained by the perspective presentation.

107In that respect, it should be noted, as did the Board of Appeal, that while in views 1.2 and 1.4 the lines are all of the same depth, that is not the case in view 1.3. In the left-hand corners of that view, the lines are more visible than in the right-hand corners.

108As regards view 1.4 at least, it should be noted that, because of the point of view and the lighting angle, it is not possible to observe a different depth of contour lines, contrary to the applicant’s allegation. In that view, the contour lines are all identical, which should not be the case with overhead lighting. The applicant fails to explain that inconsistency.

109It follows that there is an insoluble inconsistency between the ‘depth’ of the contour lines in views 1.2 and 1.4, on the one hand, and view 1.3, on the other hand.

110In the fourth place, the applicant claims that there is no insoluble inconsistency due to the shading (shadow effects) of the interior ‘window’ in views 1.2 and 1.4 compared with view 1.3. Those differences are due to different lighting effects and have no influence on the shape and configuration of the product.

111In that regard, it must be held, as did the Board of Appeal, that it is not conclusive why, in view 1.3, the inner window has dark shading, whereas, in views 1.2 and 1.4, which are also intended to represent the rear face of the design, the inner window appears transparent or white. Views 1.2, 1.3 and 1.4 cannot therefore represent the same design.

112It follows that there is an insoluble inconsistency due to the shading of the inner window in views 1.2 and 1.4, on the one hand, and view 1.3, on the other hand.

113In addition, the applicant fails to explain why the frame of the inner window, which is delimited outwards by the contour lines, appears more intensely in view 1.4 than in view 1.2. If the perspective is the same, that cannot be explained by allegedly different lighting.

114It follows that there is an insoluble inconsistency due to the frame shading between views 1.2 and 1.4.

115Therefore, in paragraphs 39 to 44 of the contested decision, the Board of Appeal was right to hold that, even accepting the applicant’s hypothesis that view 1.1 showed the front face and views 1.2, 1.3 and 1.4 the rear face of the contested design, there were insurmountable contradictions or insoluble inconsistencies between the views and, therefore, they did not represent a unitary design.

116Thus, even in the second case, which the applicant claims is more favourable to it, it must be concluded that there is no consistency of views or unicity of the contested design.

117The various complaints alleging errors of assessment of the facts must therefore be rejected.

Conclusions reached on the action

118In paragraphs 25, 45 and 46 of the contested decision, the Board of Appeal found that it followed from the two hypotheses examined that the contested design had been entered in the register in breach of Article 3(a) of Regulation No 6/2002. It observed that other combinations between the front and rear faces were conceivable, but that they would always give rise to the contradictions or inconsistencies already set out. It therefore considered that the views presented were not conclusive and presented at least two different designs. In that context, it also noted that the invalidity proceedings were intended to remedy any errors made during the registration proceedings, so that the decision taken by the examiner at the time was irrelevant for the reasons given above.

119In paragraphs 47 and 48 of the contested decision, the Board of Appeal held that, since the contested design was to be declared invalid pursuant to Article 25(1)(a) of Regulation No 6/2002, read in conjunction with Article 3(a) of that regulation, it was not possible to examine whether the contested design also lacked individual character or novelty on the basis of Article 25(1)(b) of that regulation, read in conjunction with Articles 4 to 6 of that regulation. It concluded that the contested design should be declared invalid.

120In the light of the assessments made in paragraphs 45 to 117 above, it must be noted that the applicant has not put forward any arguments capable of calling into question the legality of the contested decision, in particular the findings of the Board of Appeal.

121The single plea must therefore be rejected as unfounded.

122In the light of all the foregoing considerations, the action must be dismissed in its entirety.

Costs

123Under 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.

124In the present case, the intervener applied for the applicant to be ordered to pay the costs. EUIPO also applied for costs, but only in the event a hearing is convened.

125As the applicant has been unsuccessful and a hearing has been convened, it should be ordered to bear its own costs and to pay those incurred by EUIPO and the intervener, in accordance with their forms of order.

Operative part

On those grounds,THE GENERAL COURT (Sixth Chamber)hereby:

1.Dismisses the action;

2.Orders Orgatex GmbH & Co. KG to pay the costs.

Delivered in open court in Luxembourg on 23 October 2024.