15.4.2019
EN
Official Journal of the European Union
C 139/82
Action brought on 19 February 2019 — L. Oliva Torras v EUIPO — Mecánica del Frío (Vehicle couplings)
(Case T-100/19)
(2019/C 139/83)
Language in which the application was lodged: Spanish
Parties
Applicant: L. Oliva Torras, SA (Manresa, Spain) (represented by: E. Sugrañes Coca, lawyer)
Defendant: European Union Intellectual Property Office (EUIPO)
Other party to the proceedings before the Board of Appeal: Mecánica del Frío, SL (Cornellá de Llobregat, Spain)
Details of the proceedings before EUIPO
Proprietor of the design at issue: Other party to the proceedings before the Board of Appeal
Design at issue: European Union design (Vehicle couplings) — European Union design No 2217 588-0001
Contested decision: Decision of the Third Board of Appeal of EUIPO of 19 November 2018 in Case R 1397/2017-3
Form of order sought
The applicant claims that the Court should:
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With regard to the ground of invalidity: uphold the findings of the Board of Appeal on this point and allow the proceedings seeking invalidity of a European Union design in respect of each of Articles 4 to 9 of the Regulation on Community designs, under ‘Requirements for protection’.
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With regard to the precedence on which the claims of lack of novelty and individual character are based: the applicant submits that the comparison conducted by the Cancellation Division and the Board of Appeal, based solely on image A (render of the catalogue), is incorrect, and requests that the comparison be conducted taking into account all of the evidence submitted and the specific circumstances of the present case.
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The substance: lack of novelty of the European Union design sought. The applicant requests that the contested design be declared invalid since it is almost identical and therefore consists in an unauthorised, practically identical imitation of the designed marketed by the applicant. Consequently, the contested design lacks the novelty required to acquire protection by means of the registration of a European Union design.
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The substance: lack of individual character of the European Union design sought. The applicant requests that the contested design be declared invalid on the ground of lack of individual character with respect to the designs released earlier by L. Oliva Torras, S.A., bearing in mind the little degree of creative freedom allowed by the technical functionality of the part which must be mounted on a specific vehicle motor, the characteristics of an informed user and the similarities between the parts compared.
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The substance: existence of exclusions to the protection of a European Union design within the meaning of Article 8 of the Regulation on Community designs. The applicant requests that the contested design be declared invalid on the ground that it is subject to the prohibition laid down in Article 8(1) and (2), as the appearance of the design is dictated solely by its technical function, and that it be declared invalid on the ground that it is subject to the absolute prohibition under Article 4 of the Regulation on Community designs since it constitutes a component of a complex product.
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The substance: conflict of the European Union design with Article 9 of the Regulation on Community designs. The applicant requests that the decision of the Board of Appeal be upheld on that point.
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In accordance with Article 134(1) of the Rules of Procedure of the General Court, under ‘General rules as to the allocation of costs’, the applicant requests that the unsuccessful party be ordered to play the costs if they have been applied for in the successful party’s pleadings.
Plea in law
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Infringement of Articles 5, 6, 8 and 9 of Council Regulation (EC) No 6/2002.
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