Judgments nº T-9/15 of Tribunal General de la Unión Europea, June 13, 2017

• Resolution Date: June 13, 2017
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-9/15

In Case T-9/15,

Ball Beverage Packaging Europe Ltd, established in Luton (United Kingdom), represented by A. Renck, lawyer, authorised to replace Ball Europe GmbH,

applicant,

v

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

defendant,

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

Crown Hellas Can SA, established in Athens (Greece), represented by N. Coulson and J. Koepp, Solicitors,

ACTION brought against the decision of the Third Board of Appeal of EUIPO of 8 September 2014 (Case R 1408/2012-3), relating to invalidity proceedings between Crown Hellas Can and Ball Europe,

THE GENERAL COURT (First Chamber),

composed of H. Kanninen, President, E. Buttigieg (Rapporteur) and L. Calvo-Sotelo Ibáñez-Martín, Judges,

Registrar: A. Lamote, Administrator,

having regard to the application lodged at the Court Registry on 9 January 2015,

having regard to the response of EUIPO lodged at the Court Registry on 20 April 2015,

having regard to the response of the intervener lodged at the Court Registry on 16 April 2015,

having regard to the reply lodged at the Court Registry on 10 July 2015,

having regard to the rejoinder lodged at the Court Registry on 14 October 2015,

having regard to the application for replacement of a party, under Article 174 of the Rules of Procedure of the General Court, lodged by the applicant at the Court Registry on 27 October 2016 and the observations of EUIPO and Ball Europe lodged at the Court Registry respectively on 2 and 18 November 2016,

having regard to Article 174 and Article 176(3) and (5) of the Rules of Procedure,

further to the hearing on 28 October 2016,

gives the following

Judgment

Background to the dispute

1 Ball Europe GmbH is the holder of the Community design registered under number 2309900006 on 24 September 2004 with respect to ‘[beverage] cans’. The contested design is represented as follows:

2 In the context of the application for registration of the contested design with the European Intellectual Property Office (EUIPO), Ball Europe claimed the priority of two German designs of 27 March 2004 and of 27 April 2004, respectively.

3 The application for registration of the contested design was made in Germany and Ball Europe had indicated English as the second language, in accordance with Article 98(2) of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1).

4 In the part of the official application for registration form reserved for describing the design for which registration was sought, Ball Europe had entered the following text in English:

‘Group of cans for drink, all having a sleek but high appearance with reduced neck, preferably made of thin sheet metal, especially for filling volumes of 250 ml, 300 ml or 330 ml, respectively.’

5 On 14 February 2011, the intervener, Crown Hellas Can SA, filed an application for a declaration of invalidity of the contested design with EUIPO. It invoked Article 25(1)(b) of Regulation No 6/2002 as a ground for invalidity in so far as the contested design was not new for the purposes of Article 5 of that regulation and did not have individual character for the purposes of Article 6 of that regulation.

6 The intervener, in particular, contended that the contested design was identical with the three cans reproduced below, which had been disclosed to the public before the priority date of the contested design:

7 By decision of 8 June 2012, the Cancellation Division rejected the application for a declaration of invalidity of the contested design on the ground that the latter had the required novelty and individual character.

8 On 30 July 2012, the intervener appealed under Articles 55 to 60 of Regulation No 6/2002 against the decision of the Cancellation Division.

9 By decision of 8 September 2014 (‘the contested decision’), the Third Board of Appeal of EUIPO annulled the decision of the Cancellation Division and declared the contested design invalid on the ground that it had no individual character within the meaning of Article 6 of Regulation No 6/2002. It did not rule on the novelty of that design.

10 The Board of Appeal examined the matter to be protected by the contested design and concluded that it consisted in the appearance of an individual can represented in three different sizes. Invoking Article 98(1) of Regulation No 6/2002, it refused to take into consideration the description in English of the contested design, included in the application for registration, on the ground that that description had not been made in the language of application chosen by Ball Europe.

11 Moreover, in the context of the assessment of the individual character of the contested design, the Board of Appeal, in essence, concluded that the differences between the contested design and the earlier designs were insignificant and had no impact on the overall impression of the informed user who, in the present case, had been defined as persons who, in the drinks industry, are responsible for bottling.

Forms of order sought

12 Ball Europe claims that the Court should:

- annul the contested decision;

- order EUIPO and the intervener to pay the costs.

13 EUIPO contends that the Court should:

- dismiss the application;

- order Ball Europe to pay the costs.

14 The intervener contends that the Court should:

- uphold the contested decision;

- order Ball Europe to pay the costs incurred in the context of the present action, the proceedings before the Cancellation Division and the proceedings before the Board of Appeal.

Law

15 The parties having been heard, it is necessary to admit Ball Beverage Packaging Europe Ltd to replace Ball Europe, in accordance with Article 176(3) of the Rules of Procedure of the General Court.

16 It should also be noted that, under Article 176(5) of the Rules of Procedure, if the application for replacement is granted, the successor to the party who is replaced must accept the case as he finds it at the time of that replacement. He is bound by the procedural documents lodged by the party who he replaces.

17 The applicant, Ball Beverage Packaging Europe, raises two pleas in law, the first alleging an infringement of the first sentence of Article 62 of Regulation No 6/2002, relating to the obligation to state reasons and the second an infringement of the combined provisions of Article 25(1)(b) and Article 6 of that regulation.

18 In response to a question put by the Court during the hearing, the applicant claimed that, in paragraph 21 of the application, a third plea in law was also implicitly set out and alleged an infringement of the rights of the defence in so far as the Board of Appeal should have given it the possibility to take a position on the question relating to the definition of the subject matter of the protection afforded by the contested design, a question which was addressed for the first time in the contested decision. EUIPO and the intervener contested that that paragraph contains an independent plea in law alleging an infringement of the rights of the defence and contended that, in so far as they did not interpret that paragraph in that way, they were unable to submit observations on that alleged plea in law.

19 Under Article 44(1)(c) of the Rules of Procedure of the General Court of 2 May 1991, the application must state the subject matter of the dispute and a summary of the pleas in law on which the application is based.

20 It is apparent from the case-law that the summary of the pleas in law must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court to rule on the action, even without any other information (see judgment of 13 June 2012, Insula v Commission, T-246/09, not published, EU:T:2012:287, paragraph 221 and the case-law cited). It follows therefrom that the meaning and scope of a plea in law raised in support of an action must be unambiguously apparent from the application (judgment of 13 June 2012, Insula v Commission, T-246/09, not published, EU:T:2012:287, paragraph 262).

21 In the present case, the applicant puts forward clearly, in the application, the two pleas in law set out in paragraph 17 above. Moreover, it must be noted that, in paragraph 21 of the application, the applicant complains that the Board of Appeal amended the subject matter of the protection afforded by the contested design ‘although that matter had not been brought before it’. Furthermore, in paragraph 19 of the application, the applicant concluded that the Board of Appeal’s observations relating to the registrability of the contested design in the light of Article 3(a) of Regulation No 6/2002 are irrelevant in so far as the parties did not take a position on that issue, as is required by the second sentence of Article 62 of Regulation No 6/2002. Nevertheless, it cannot be concluded from those claims that the applicant puts forward an independent plea in law alleging an infringement of its rights of defence. That plea in law is not expressly put forward, as was admitted by the applicant at the hearing, and was not sufficiently developed. Neither the structure and titles used in the application, nor the part thereof entitled ‘Summary of the pleas in law’, nor the rest of its contents demonstrate that the applicant raised an independent plea in law alleging an infringement of its rights of defence. In particular, it should be noted that paragraphs 19 and 21 of the application were placed under the heading ‘Obiter dictum concerning Article 3(a) of Regulation [No 6/2002]’ and that the contents of the part of the application placed under that heading clearly highlights two arguments, the first alleging that the Board of Appeal’s findings relating to the registrability of the contested design were irrelevant and the second alleging that the latter had incorrectly defined the subject matter of the protection afforded by that design...