Gamma-A v EUIPO - Zivju pārstrādes uzņēmumu serviss (Emballage pour aliments) (Community design - packaging for foodstuffs - Judgment) [2020] EUECJ T-352/19 (12 March 2020)

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(Community design — Invalidity proceedings — Registered Community design representing packaging for foodstuffs — Earlier design — Ground for invalidity — No individual character — No different overall impression — Article 6(1)(b) and Article 25(1)(b) of Regulation (EC) No 6/2002)

Gamma-A SIA, established in Riga (Latvia), represented by M. Liguts, lawyer,

European Union Intellectual Property Office (EUIPO), represented by S. Hanne, acting as Agent,

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

Zivju pārstrādes uzņēmumu serviss SIA, established in Riga, represented by J. Alfejeva, lawyer,

ACTION brought against the decision of the Third Board of Appeal of EUIPO of 25 March 2019 (Case R 2516/2017-3), relating to invalidity proceedings between Piejūra SIA and Gamma-A,

composed of D. Spielmann, President, U. Öberg and O. Spineanu‑Matei (Rapporteur), Judges,

having regard to the response of EUIPO lodged at the Court Registry on 5 August 2019,

having regard to the response of the intervener lodged at the Court Registry on 12 August 2019,

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

1 On 10 April 2012, the applicant, Gamma-A SIA, requested and obtained from the European Union Intellectual Property Office (EUIPO), on the basis of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1), registration under number 2022772-0001 of a Community design represented in the following three views:

2 The products into which the contested design is intended to be incorporated are in Class 9-3 of the Locarno Agreement of 8 October 1968 establishing an International Classification for Industrial Designs, as amended, and correspond to the following description: ‘Packaging for foodstuffs’. The application for registration as a Community design was published in Community Designs Bulletin No 2012/072 of 13 April 2012.

3 On 3 March 2017, the intervener, Zivju pārstrādes uzņēmumu serviss SIA, formerly Piejūra SIA, filed with EUIPO an application for a declaration of invalidity in respect of the contested design under Article 52 of Regulation No 6/2002.

4 The ground relied upon in support of the application for a declaration of invalidity was that set out in Article 25(1)(b) of Regulation No 6/2002. The intervener claimed, inter alia, in its application for a declaration of invalidity, that the contested design lacked novelty and individual character for the purposes of Articles 5 and 6 of that regulation. In support of its application, the intervener stated that the contested design was identical to, or produced the same overall impression on the informed user as, the design intended to be incorporated in a food container with a transparent removable lid, known as CANPEEL®, developed by the company O.Kleiner AG. In order to prove that the earlier design had been disclosed, the intervener submitted a statement by O.Kleiner that the design had been exhibited at the ‘Interpack’ fair in Dusseldorf (Germany) in 2008, a copy of the company’s newsletter for December 2008 reporting that the earlier design had won several packaging awards in 2008, and correspondence referring to the fact that, in 2011, a Latvian preserved fish company had received several CANPEEL® boxes from O.Kleiner in order to try them. The image which appeared in the newsletter mentioned above is reproduced below:

5 By decision of 21 November 2017, the Invalidity Division rejected the application for a declaration of invalidity. In essence, first, as regards the contested design’s alleged lack of novelty for the purposes of Article 5 of Regulation No 6/2002, it found that the designs at issue were not identical on account of the differences relating to the ring-pulls for opening the lids and the foodstuffs contained in the packaging in which they were intended to be incorporated. Second, as regards the lack of individual character for the purposes of Article 6 of Regulation No 6/2002, alleged by the intervener, the Invalidity Division stated that the contested design did have such character in so far as, since the contents of the packaging in which the contested design was intended to be incorporated are visible and therefore form part of the design, the differences in this design are sufficient for the designs at issue to produce on the informed user different overall impressions.

6 On 23 November 2017, the intervener filed a notice of appeal with EUIPO, under Articles 55 to 60 of Regulation No 6/2002, against the Invalidity Division’s decision, claiming once again that the contested design lacked novelty and individual character for the purposes of Article 25(1)(b) of Regulation No 6/2002, in conjunction with Articles 5 and 6 thereof, in so far as it produced on the informed user the same overall impression as the earlier design.

7 By decision of 25 March 2019 (‘the contested decision’), the Third Board of Appeal of EUIPO upheld the intervener’s appeal. On the basis of Article 25(1)(b) of Regulation No 6/2002 in conjunction with just Article 6 thereof, it took the view, in essence, that the contested design produced on the informed user the same overall impression as that produced by the earlier design, in so far as the designs at issue have the same characteristics as regards their appearance. It added that only the features of appearance of the packaging in which the contested design is intended to be incorporated should be taken into account, and not the features of appearance of the foodstuffs contained within it as well, irrespective of whether, due to the fact that the packaging or its lid are transparent, the foodstuffs are visible. Accordingly, the Board of Appeal annulled the Invalidity Division’s decision and declared the contested design invalid for lack of individual character.

– annul the contested decision and, accordingly, declare the contested design valid;

Admissibility of the head of claim seeking from the Court a declaration that the contested design is valid

10 EUIPO claims that the first head of claim in the application, in so far as it seeks from the Court a declaration that the contested design is valid, is inadmissible since the declaration of validity sought falls outside the scope of an application for annulment, the objective of which cannot be to obtain confirmatory or declaratory rulings. If that head of claim were to be interpreted as referring to the consequence of the annulment of the contested decision and the rejection of the intervener’s application for a declaration of invalidity, it would, in any event, be redundant.

11 In that regard, it should be noted that, by its first head of claim, the applicant seeks, inter alia, to obtain a declaratory ruling to the effect that the contested design is valid. However, the General Court has jurisdiction, under Article 61(3) of Regulation No 6/2002, only to annul or to alter decisions of the Boards of Appeal. Therefore, the Court does not have jurisdiction to declare the contested design valid (see, by analogy judgment of 1 July 2014, You-View.tv v OHIM — YouView TV (YouView+), T‑480/13, not published, EU:T:2014:591, paragraph 15 and the case-law cited).

12 As a result, in so far as it seeks from the Court a declaration that the contested design is valid, the applicant’s first head of claim is inadmissible.

13 In support of its action, the applicant relies on a single ground of appeal, alleging infringement of Article 25(1)(b) of Regulation No 6/2002, in conjunction with Article 6 of that regulation. In essence it criticises the Board of Appeal for having found that the contested design produced on the informed user the same overall impression as the earlier design, with the result that it lacked individual character.

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

16 Among the requirements for protection of a design by a Community design laid down in Articles 4 to 9 of Regulation No 6/2002 is the requirement that the design has individual character, as set out in Article 6 of that regulation. Article 6(1)(b) of Regulation No 6/2002 provides that a registered Community design is considered to have individual character if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public before the date of filing the application for registration. Article 6(2) of Regulation No 6/2002 states, in addition, that in assessing the individual character of a design, the degree of freedom of the designer in developing that design is to be taken into consideration.

17 In accordance with case-law, the individual character of a design results from an overall impression of difference or lack of ‘déjà vu’, from the point of view of an informed user, in relation to any previous presence in the design corpus, without account being taken of any differences that are insufficiently significant to affect that overall impression, even though they may be more than insignificant details, but regard being had to differences that are sufficiently marked so as to produce dissimilar overall impressions (see judgment of 7 November 2013, Budziewska v OHIM — Puma (Bounding feline), T‑666/11, not published, EU:T:2013:584, paragraph 29 and the case-law cited).

18 In the assessment of the individual character of a design in relation to any previous presence in the design corpus, account must be taken of the nature of the product in which that design is incorporated, in particular the industrial sector to which it belongs (see recital 14 of Regulation No 6/2002), the degree of freedom of the designer in developing the design (see Article 6(2) of Regulation No 6/2002), whether there is saturation of the state of the art, which might make the informed user more attentive to the differences in the designs compared, and also the manner in which the product concerned is used, in particular the way it is normally handled (see, to that effect, judgment of 7 November 2013, Bounding feline, T‑666/11, not published, EU:T:2013:584, paragraph 31 and the case-law cited).

19 As a preliminary point, it should be noted that, in paragraph 16 of the contested decision, the Board of Appeal stated that the earlier design had been made available to the public before the date of filing of the application for registration of the contested design. That finding by the Board of Appeal has not been challenged by the applicant before the Court.

20 It is thus in the light of the considerations set out in paragraphs 15 to 18 above and in relation to the earlier design that it is necessary to determine whether the contested design lacks individual character within the meaning of Article 6 of Regulation No 6/2002.

21 In the present case, first, in paragraph 30 of the contested decision, the Board of Appeal stated that the relevant sector by reference to which the informed users of the contested design are to be identified was the industrial foodstuffs packaging sector. Second, in paragraphs 19 to 21 of the contested decision, the Board of Appeal indicated, in essence, that in view of the function of the products in which the contested design was intended to be incorporated, namely packaging for foodstuffs, the informed user of the contested design was, on the one hand, the ‘professional of the food-processing industry’ who fills the container with food, notably fish preserves, and, on the other hand, the ‘average consumer of preserves’ who opens the container in order to consume its contents. Third, in paragraph 24 of the contested decision, the Board of Appeal indicated that the designer of the contested design had broad freedom since food can be preserved in containers that have different appearances as a result of different shapes and materials, without limiting the function of the product.

22 It is therefore necessary to make a comparison between the overall impressions produced on the informed user by the designs at issue on the basis of the findings, referred to in paragraph 21 above, made by the Board of Appeal, which are, moreover, not disputed by the parties.

23 Following its assessment of the overall impression produced on the informed user by the contested design, the Board of Appeal concluded, in paragraph 26 of the contested decision, that it produced an impression of ‘déjà vu’ in relation to the earlier design.

24 The Board of Appeal’s finding in that respect must be endorsed. Indeed, the contested design is intended to be incorporated into packaging formed of the same components with the same characteristics as those of which the packaging incorporating the earlier design are formed, namely a metal container that has a transparent lid with a translucent tab. The informed user who looks at the designs at issue will easily recognise, as regards the metal container, the same circular cross-section, the same diameter-to-height proportions and the same colours, namely the gold of the base and the silver of the rim. Furthermore, although the lid and tab are functional elements of the designs at issue — the lid being a means of closing the container and the tab being a means of removing the lid with the fingers — the first of those elements is a transparent film pasted inside the rim of the container and the second is a small translucent tab. This also contributes to producing an impression of ‘déjà vu’ from the perspective of the informed user of the contested design in relation to the earlier design.

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

26 In the first place, the applicant claims that, while the indication of the product in which the design is intended to be incorporated and the classification of that product state that the contested design concerns ‘packaging for foodstuffs’, that does not prevent the scope of the design protection being extended to the contents of the packaging in question, given that those contents are visible. Furthermore, since products are classified purely for administrative purposes, as stated in Article 3(2) of Commission Regulation (EC) No 2245/2002 of 21 October 2002 implementing Regulation No 6/2002 (OJ 2002 L 341, p. 28), the Board of Appeal incorrectly extended the scope of the classification of products in such a manner as to influence the scope of the protection of the contested design.

28 In that regard, it must be noted, first, that although the classification of the products in which a design is intended to be incorporated cannot serve, on its own, to determine the subject matter of the protection to be afforded by that design, given that, in accordance with Article 36(6) of Regulation No 6/2002, that information cannot affect the scope of protection of the design as such, it cannot be ruled out, as EUIPO and the intervener rightly submit, that it may in fact contribute to establishing the overall impression produced by that design on the informed user for the purpose of assessing whether it has individual character in relation to an earlier design.

29 As recital 14 of Regulation No 6/2002 states, the assessment as to whether a design has individual character should be based on whether the overall impression produced on an informed user viewing the design clearly differs from that produced on him or her by the existing design corpus, taking into consideration, inter alia, the nature of the product in which that design is intended to be incorporated. Furthermore, case-law has confirmed that identification of the precise product in which the design is incorporated is relevant for the purposes of assessing its individual character, within the meaning of Article 6 of that regulation (see, to that effect, judgment of 13 May 2015, Group Nivelles v OHIM — Easy Sanitairy Solutions (Shower drainage channel), T‑15/13, EU:T:2015:281, paragraph 133).

30 Therefore, the Board of Appeal was right to take into consideration the fact that the contested design is intended to be incorporated in packaging for foodstuffs for the purpose of its assessment of the overall impression it produces on the informed user and, therefore, of its individual character in relation to the earlier design.

31 Second, contrary to the applicant’s claim, the fact that the contents of the packaging in which it is intended to be incorporated are visible does not extend the protection conferred on the contested design to those contents. Indeed, the most that can be said concerning the presence of visible foodstuffs in the products in which the contested design is intended to be incorporated is that it provides a better illustration of their purpose, namely as packaging for foodstuffs, as well as one of their components, namely the transparent lid.

32 In the second place, the applicant claims, first, that the Board of Appeal was wrong to exclude the visible foodstuffs inside the packaging in which the contested design is intended to be incorporated from the scope of ‘overall impression’, to which Article 6(1) of Regulation No 6/2002 refers.

33 It must be noted, in that regard, that the comparison of the overall impressions produced by the designs must relate solely to the elements actually protected (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, paragraph 79 and the case-law cited). As was correctly stated by the Board of Appeal in paragraph 31 of the contested decision and confirmed by the Court in paragraph 31 above, the protection conferred by the contested design relates to its appearance in that it is intended to be incorporated into packaging for foodstuffs having certain components with specific characteristics, namely a metal container that has a transparent lid with a translucent tab. The foodstuffs inside the container must not, therefore, be taken into consideration for the purpose of assessing the ‘overall impression’ referred to in Article 6(1) of Regulation No 6/2002.

34 The applicant claims, next, that the informed user will be able to distinguish between the designs at issue since their transparent lid enables the user to see the foodstuffs contained in the packaging in which the contested design is intended to be incorporated and the specific way in which those foodstuffs are arranged, which gives the contested design a more attractive appearance compared with the earlier design. According to the applicant, the informed user will make his or her choice not in order to have an empty container at his or her disposal but in order to consume the foodstuffs that it contains. Even the professionals of the food processing industry will not see just the containers, empty and without food. As a result, the foodstuffs in question are an integral part of the contested design since they form a part of the overall impression that the design produces on the informed user.

35 The applicant thus refers to the overall impression produced by the contested design on the informed user, as defined in paragraph 21 of the contested decision — which is the definition adopted by the Court in paragraphs 21 and 22 above — and represented, first, by ‘the average consumer of preserves’ who opens the container in order to consume its contents and, second, by ‘the professional of the food-processing industry’ who fills the container with food.

36 In that regard, it should be borne in mind, first, that the informed user represented by ‘the average consumer of preserves’ does not correspond to ‘the average consumer’, who is the consumer deemed to be reasonably well informed and reasonably observant and circumspect, forming part of the relevant public interested in the goods covered by a trade mark.

37 According to case-law, the concept of the ‘informed user’ must be understood as lying somewhere between that of the average consumer, applicable in trade mark matters, who need not have any specific knowledge and who, as a rule, makes no direct comparison between the trade marks at issue, and the sectoral expert, who has detailed technical expertise. Thus, the concept of the informed user may be understood as referring, not to a user displaying an average level of attention, but to a particularly observant one, either because of his or her personal experience or his or her extensive knowledge of the sector in question (judgment of 20 October 2011, PepsiCo v Grupo Promer Mon Graphic, C‑281/10 P, EU:C:2011:679, paragraph 53). Generally, the informed user will make a direct comparison of the designs in at issue (judgments of 20 October 2011, PepsiCo v Grupo Promer Mon Graphic, C‑281/10 P, EU:C:2011:679, paragraph 55, and of 14 March 2017, Wessel-Werk v EUIPO — Wolf PVG (Suction nozzles for vacuum cleaners), T‑174/16, not published, EU:T:2017:161, paragraph 24).

38 Second, the qualifier ‘informed’ suggests that, without being a designer or a technical expert, the user knows the various designs which exist in the sector concerned, possesses a certain degree of knowledge with regard to the features which those designs normally include, and, as a result of his or her interest in the products concerned, shows a relatively high level of attention when using them (see judgment of 13 May 2015, Group Nivelles v Shower drainage channel, T‑15/13, EU:T:2015:281, paragraph 128 and the case-law cited), whether the user is, as in the present case, a professional or the final consumer of the products in question.

39 Third, the assessment of the overall impression produced on the informed user by a design includes the manner in which the product represented by that design is used (see, to that effect, judgment of 21 November 2013, El Hogar Perfecto del Siglo XXI v OHIM — Wenf International Advisers (Corkscrew), T‑337/12, EU:T:2013:601, paragraph 46 and the case-law cited).

40 Accordingly, the informed user of the contested design, whether a consumer of the preserves or a professional of the food-processing industry, will assess that design in accordance with the purpose of the products in which the design is intended to be incorporated, namely as packaging for foodstuffs, and will be able to differentiate between that packaging and its contents. Therefore, as the Board of Appeal rightly found in paragraph 29 of the contested decision, the appearance of the foodstuffs contained in the packaging in which the contested design is intended to be incorporated, as well as their specific arrangement inside that packaging, is not relevant for the purpose of assessing the overall impression produced on the informed user by the contested design.

41 Lastly, the applicant relies on recitals 7, 12 and 14 of Regulation No 6/2002, as well as the judgment of 9 September 2014, Biscuits Poult v OHIM — Banketbakkerij Merba (Biscuit) (T‑494/12, EU:T:2014:757), in support of its claim that Regulation No 6/2002 confers protection only on the visible parts of products or parts of products, which may as a result be registered as designs. Relying on those provisions and on the conclusions to be drawn from the case-law just mentioned, it argues that the fact that the foodstuffs contained in the packaging in which the contested design is intended to be incorporated are visible, through its transparent lid, enables the informed user to assess the quality and arrangement of those foodstuffs, which will be the most significant factor in determining whether to purchase the product and, consequently, the most significant factor in the overall impression produced on the informed user by the design.

42 It must be borne in mind, in that regard, that recitals 7, 12 and 14 of Regulation No 6/2002 refer, respectively, to protection for industrial design, to the fact that component parts and features which are not visible are excluded from that protection and, as was already noted in paragraph 29 above, to the assessment of individual character of a design, which should involve determining the overall impression it produces on an informed user viewing the design, taking into consideration, inter alia, the nature of the product in which the design is intended to be incorporated.

43 However, as stated in paragraph 31 above, although visible in both the packaging in which the contested design is intended to be incorporated and the packaging incorporating the earlier design, the foodstuffs in that packaging do not form part of the appearance of the designs at issue, which, in particular, their components with specific characteristics give them, namely a metal container that has a transparent lid with a translucent tab.

44 The applicant also relies on recital 11 of Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs (OJ 1998 L 289, p. 28), which states that protection is conferred by way of registration of a design upon the right holder for those design features of a product, in whole or in part, which are shown visibly in an application, in an effort to strengthen the validity of its argument that, since the foodstuffs contained in the packaging in which the design is intended to be incorporated are visible, they should be considered to form part of that design.

45 However, the applicant cannot usefully rely on such a provision. It is clear, first, from recital 3 of Regulation No 6/2002, that Directive 98/71 contributes to remedying the substantial differences between Member States’ design laws and, second, from recitals 1 to 3 of Directive 98/71, that that directive has the objective of approximating the laws of the Member States on the legal protection of national designs, so that the differences in the legal protection of those designs offered by the legislation of the Member States do not distort competition within the internal market. In the present case, however, it is not necessary to assess whether there is a conflict between the designs at issue within the meaning of Article 25(1)(d) of Regulation No 6/2002, which constitutes an independent ground for invalidity, which has not been raised in the present case and which could, if it had been, lead to an examination of the protection conferred on a national design under the law of a Member State. On the other hand, it must be established, on the basis of the scope of protection conferred by a Community design, as defined in Article 3(a) of Regulation No 6/2002, in the light, if appropriate, of recital 12 thereof, whether the contested design has individual character, in line with Article 25(1)(b) in conjunction with Article 6 of that regulation, and the interpretation given by case-law to those provisions, and which results from an overall impression of difference, or lack of ‘déjà vu’ from the perspective of the informed user, in relation to any previous presence in the design corpus, in which the intervener chose the earlier design.

46 The applicant disagrees with the analogy made by the Board of Appeal in paragraph 31 of the contested decision, according to which, when assessing the individual character of, for instance, a passenger car, it is only the features of the appearance of the car which must be considered, not those of the passengers inside it, irrespective of whether, due to the fact that the windows or the rooftop are transparent, they can be seen. Admittedly, as the applicant states, unlike packaging for foodstuffs a car is never sold with people inside. However, for the reasons set out in paragraphs 31, 33 and 40 above, when assessing the overall impression produced on the informed user by the contested design for the purpose of examining its individual character, it is only the features of the appearance of the packaging in which the contested design is intended to be incorporated that must be considered, not the characteristics, quality and arrangement of the foodstuffs it contains, irrespective of whether, on account of the fact that the packaging or its lid are transparent, those foodstuffs are visible.

47 In the third place, the applicant claims that the designs at issue differ, not only in the foodstuffs they contain, but also as a result of other elements that distinguish them, which also lead to the conclusion that the designs at issue produce on the informed user manifestly different overall impressions. It refers, for that purpose, to the tab for opening the lid, which is completely transparent, rather small and barely visible in the contested design, whereas it is not completely transparent and is larger in the earlier design.

48 In that regard, it must be borne in mind that the more the designer’s freedom in developing a design is restricted, the more likely minor differences between the designs at issue will be sufficient to produce a different overall impression on an informed user. Conversely, the greater the designer’s freedom in developing a design, the less likely it is that minor differences between the designs at issue will be sufficient to produce a different overall impression on an informed user (see, to that effect, judgment of 18 July 2017, Chanel v EUIPO — Jing Zhou and Golden Rose 999 (Ornament), T‑57/16, EU:T:2017:517, paragraph 30).

49 As stated in paragraph 24 above, the informed user will easily recognise in the designs at issue the same components, namely a metal container of the same shape and proportions that has a transparent lid with a translucent tab. Given the designer’s broad freedom in developing the contested design, the differences highlighted by the applicant as regards the different degrees of transparency and the different sizes of the tab for opening the lid are insufficiently pronounced to produce on the informed user an overall impression of the contested design that is different from that produced on such a user by the earlier design.

50 It is clear from all the above that the Board of Appeal did not make an error of assessment in finding, in paragraph 32 of the contested decision, that the designs at issue produce the same overall impression on the informed user and by therefore concluding that the contested design lacks individual character for the purposes of Article 25(1)(b) of Regulation No 6/2002, in conjunction with Article 6 thereof, in relation to the earlier design.

51 Accordingly, the single plea in law must be rejected and, therefore, the action must be dismissed in its entirety.

52 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.

53 Since the applicant has been unsuccessful in the present case, it must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO and the intervener.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Gamma-A v EUIPO - Zivju pārstrādes uzņēmumu serviss (Emballage pour aliments) (Community design - packaging for foodstuffs - Judgment) [2020] EUECJ T-352/19 (12 March 2020) URL: http://www.bailii.org/eu/cases/EUECJ/2020/T35219.html Cite as: EU:T:2020:94, [2020] EUECJ T-352/19, ECLI:EU:T:2020:94

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