Case T‑39/13

Cezar Przedsiębiorstwo Produkcyjne Dariusz Bogdan Niewiński

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

‛Community design — Invalidity proceedings — Registered Community design representing an insert — Earlier design — Novelty — Individual character — Visible features of a component part of a complex product — Assessment of the earlier design — Articles 3, 4, 5, 6 and 25(1)(b) of Regulation (EC) No 6/2002’

Summary — Judgment of the General Court (Fourth Chamber), 3 October 2014

1. Community designs — Conditions for protection — Design constituting a component part of a complex product — Component part having to remain visible during normal use of the product in order to be regarded as new and individual in character

   (Council Regulation No 6/2002, recital 12 and Art. 4(2)(a))

2. Community designs — Conditions for protection — Design constituting a component part of a complex product — Component part having to remain visible during normal use of the product in order to be regarded as new and individual in character — Not possible to assess the conditions by means of a comparison with an invisible earlier design as a component part of a complex product

   (Council Regulation No 6/2002, Art. 4(2)(a))

1.  Under Article 4(2)(a) of Regulation No 6/2002, a design which constitutes a component part of a complex product is not to be considered to be new or to have individual character unless that component part, once it has been incorporated into the complex product, remains visible during normal use of the latter.

   Visibility is an essential criterion for the protection of Community designs: recital 12 in the preamble to Regulation No 6/2002 states that protection should not be extended to those component parts which are not visible during normal use of a product; nor should it be extended to any features of such a part which are not visible when the part is mounted.

   (see paras 36, 40)

2.  Since a design constituting a component part of a complex product which is not visible during normal use of that complex product cannot be protected under Article 4(2)(a) of Regulation No 6/2002, it must be held, by analogy, that the novelty and individual character of a Community design cannot be assessed by comparing that design with an earlier design which, as a component part of a complex product, is not visible during normal use of that product. Therefore, the criterion of visibility as set out in recital 12 to Regulation No 6/2002 applies to the earlier design.

   (see paras 51, 52)