Ripasso sul carattere individuale dei modelli (art. 6 reg. EU 6 del 2002) offerto da Trib. UE T-654/22 del 10.04.2024, da segnalzione di Marcel Pemsel in IpKat, M&T 1997, a.s. c. EUIPO.
Design sub iudice:
Anteriorità asseritamente provante l’assenza di car. individ.:
Dopo due rigetti amministrativi, l’istante ottiene vittoria giudiziale: chi la dura la vince (stavolta).
<< 25 It should be noted that Regulation No 6/2002 does not define the concept of the ‘informed user’. According to the case-law, the concept of ‘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 is an expert with detailed technical expertise. Thus, the concept of the informed user may be understood as referring, not to a user of average 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).
26 As regards the informed user’s level of attention, it should be noted that, although the informed user is not the well-informed and reasonably observant and circumspect average consumer who normally perceives a design as a whole and does not proceed to analyse its various details, he or she is also not an expert or sectoral expert capable of observing in detail the minimal differences that may exist between the designs at issue. Thus, 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 degree of attention when he or she uses them (see, to that effect, judgment of 20 October 2011, PepsiCo v Grupo Promer Mon Graphic, C‑281/10 P, EU:C:2011:679, paragraph 59 and the case-law cited).
27 In the present case, as regards the applicant’s argument that it is not only the end user himself or herself who may be regarded as an informed user, but also the handle salesperson, it should be noted that, according to the case-law referred to in paragraphs 25 and 26 above, the concept of ‘informed user’ does not refer to a professional quality linked to the product concerned. Furthermore, the informed user is neither an expert nor a specialist, such as a sectoral expert. The applicant’s argument therefore cannot succeed. (…)
34 According to the case-law, the degree of freedom of the designer of a design is determined by, inter alia, the constraints of the features imposed by the technical function of the product or an element thereof, or by statutory requirements applicable to the product to which the design is applied. Those constraints result in a standardisation of certain features, which will thus be common to the designs applied to the product concerned (see judgment of 29 October 2015, Roca Sanitario v OHIM – Villeroy & Boch (Single control handle faucet), T‑334/14, not published, EU:T:2015:817, paragraph 35 and the case-law cited).
35 In the present case, the Board of Appeal’s assessment, set out in paragraph 31 above, is consistent with the case-law of the Court according to which the degree of freedom of the designer of a door handle with a grip is high, on account of the fact that that handle can be made in a significant variety of shapes, colours and materials (judgment of 5 July 2017, Gamet v EUIPO – ‘Metal-Bud II’ Robert Gubała (Door handle), T‑306/16, not published, EU:T:2017:466, paragraphs 45 to 47).
36 Contrary to what the applicant claims, the length of the pivoting lever of a door handle with a grip does not appreciably limit the designer’s freedom either in relation to the particular shape of that lever or in relation to the other elements of the appearance of such a handle, as shown by the examples of door handles illustrated in paragraph 25 of the contested decision. (…)
55 Furthermore, as regards the elements which are, for their part, relevant to the comparison of the overall impressions produced by the designs at issue, it should be noted that, when the informed user uses a door handle with a grip in accordance with its normal use, he or she clasps its gripping area with the hand, which corresponds, in the present case, to the grip, in order to exert downward pressure so that the latch of the door slides and allows the door to be opened, which can then be pushed or pulled. Where the informed user approaches the door handle in order to use it normally, that user sees it from above. Accordingly, the most visible elements of the handle are those corresponding to the outward-facing parts of the handle, namely the front, side and top parts of the handle. As the Board of Appeal acknowledged in paragraphs 33 and 35 of the contested decision, the differences at the back, namely the curvature of the edges and the shape of the neck, will also be visible to the informed user and will not be overlooked by him or her. Moreover, as the applicant points out, the rounded curvature of the edges of the contested design is accompanied by a thinner and smoother appearance which the informed user will easily notice.
56 Furthermore, the rounded and thinner shapes of the edges of the contested design constitute differences from the earlier design which will be perceived by the informed user as influencing the manipulation of the handle and are, therefore, important elements in relation to the overall impression produced by the contested design, in accordance with the considerations set out in paragraphs 49 and 50 above. Those aspects have an impact on the ease of use of the handle, since they correspond to the parts of it which come into direct contact with the hand of the informed user.
57 Consequently, in accordance with the considerations set out in paragraph 49 above, the attention of the informed user is focused on all the elements set out in paragraphs 55 and 56 above.
58 In the light of the information provided in paragraphs 55 and 56 above and the high level of attention of the informed user in the present case (see paragraph 22 above), it must be held that, contrary to what the Board of Appeal found in paragraph 35 of the contested decision, the differences in the angles of the grip and the neck are neither marginal nor minor variations of one and the same design. A more rounded shape generally results in a softening of the lines of the neck and grip, which has a significant effect both on the overall appearance and on the ease of use of the door handle. It is therefore an element which attracts the informed user’s attention.
59 It follows from the foregoing that, although the designer’s freedom is high (see paragraph 35 above), those differences are sufficiently significant to produce a different overall impression of the designs at issue, contrary to the Board of Appeal’s analysis.
60 In the light of those considerations, the Board of Appeal erred in finding that the designs at issue produced the same overall impression on the informed user and that the contested design therefore lacked individual character within the meaning of Article 6(1)(b) of Regulation No 6/2002>>.
