Sata v EUIPO - Zhejiang Auarita Pneumatic Tools (Pistolet a peinture) (Community design - Invalidity proceedings - Judgment) [2018] EUECJ T-651/17 (29 November 2018)

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(Community design — Invalidity proceedings — Registered Community design representing a paint spray gun — Earlier Community designs — Ground for invalidity — Informed user — Designer’s degree of freedom — Individual character — Saturation of the state of the art — Article 6 and Article 25(1)(b) of Regulation (EC) No 6/2002 — Expediency of oral proceedings — Article 64(1) of Regulation No 6/2002 — Duty to state reasons — Article 62 of Regulation No 6/2002)

Sata GmbH & Co. KG, established in Kornwestheim (Germany), represented by K. Manhaeve and G. Glas, lawyers,

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

ACTION brought against the decision of the Third Board of Appeal of EUIPO of 12 July 2017 (Case R 914/2016-3), relating to invalidity proceedings between Zhejiang Auarita Pneumatic Tools and Sata,

composed of D. Gratsias, President, I. Labucka and I. Ulloa Rubio (Rapporteur), Judges,

having regard to the application lodged at the Court Registry on 22 September 2017,

1 On 10 February 2011, the applicant, Sata GmbH & Co. KG, filed an application for registration of a Community design with the European Union Intellectual Property Office (EUIPO), pursuant to Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1).

2 The Community design in respect of which registration was sought is represented in the following six views in colour:

3 The goods to which the contested design is intended to be applied are in Class 08.05 of the Locarno Agreement of 8 October 1968 establishing an International Classification for Industrial Designs, as amended, and correspond to the following description: ‘Spray guns for paint’.

4 The contested design was registered under number 1259626-0001 on the day on which the application for registration was submitted and published in the Community Designs Bulletin No 2011/057 of 10 March 2011, with a date of priority of 12 August 2010.

5 On 11 August 2015, Zhejiang Auarita Pneumatic Tools Co. Ltd, filed an application with EUIPO for a declaration of invalidity of the contested design. The ground relied on in support of its application was that set out in Article 25(1)(b) of Regulation No 6/2002, read in conjunction with Articles 4 to 9 of that regulation.

6 In support of its application for a declaration of invalidity, Zhejiang Auarita Pneumatic Tools relied on the following earlier designs:

– US design patent No US D 55 715 S for a ‘paint spray gun’ filed in the name of the applicant on 26 January 2006, granted and published on 9 October 2007 and represented in the following 14 non-coloured views:

– Community design number 378815-0004, intended to be applied to ‘spray guns for paint’, filed and registered on 28 July 2005 in the name of the applicant and published on 3 October 2007, represented in the following six non-coloured views:

– Community design number 378815-0005 for ‘spray guns for paint’, filed and registered on 28 July 2005 in the name of the applicant and published on 3 October 2007, represented in the following three non-coloured views:

7 By decision of 23 March 2016, the Cancellation Division upheld the application for a declaration of invalidity of the contested design, pursuant to Article 25(1)(b) of Regulation No 6/2002, read in conjunction with Article 6 of that regulation, on the ground that the contested design lacked individual character in relation to the earlier US design patent and the two earlier Community designs.

8 On 18 May 2016, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 55 to 60 of Regulation No 6/2002, against the Cancellation Division’s decision.

9 By decision of 12 July 2017 (‘the contested decision’), the Third Board of Appeal of EUIPO dismissed the appeal. It considered that the contested design should be declared invalid due to a lack of individual character within the meaning of Article 6(1) of Regulation No 6/2002. In particular, the Board of Appeal noted, first, that, even though the designer’s freedom was limited in respect of the gun-shape of the body and the essential components of paint spray guns, it nevertheless enjoyed considerable design freedom with regard to the shape of the handle, the spray head, the trigger, the hook and the devices for adjusting the paint flow. Secondly, it considered that, due to his knowledge of existing paint spray guns, the informed user was informed of the essential components that a paint spray gun must possess and of the limitations of the design freedom in that regard. Thirdly, the Board of Appeal found, following a comparison of the contested design with the earlier design number 378815-0005, that the designs at issue only differed in small details, namely the use of the colours green and yellow, the shape and position of the colour system at the bottom of the handle and the nozzle, the shape of the tail ends of the two screws, which is flattened in the contested design and conical shaped in the earlier design, the aperture below the hook which is squared in the contested design and circular in the earlier design and the shape of the handle, which is slimmer and slightly protruding in the contested design and broader and flat in the earlier design. In this respect, the Board of Appeal found that, while these differences could not be considered immaterial within the meaning of Article 5(2) of Regulation No 6/2002, they were nevertheless insufficient to produce a different overall impression on the informed user. Consequently, the Board of Appeal concluded that the contested design lacked individual character with regard to the earlier design number 378815-0005 (‘the earlier design’) and that there was therefore no need to examine the other earlier designs relied on.

– order EUIPO and, if appropriate, Zhejiang Auarita Pneumatic Tools, to jointly and severally pay the costs.

12 In support of its action, the applicant puts forward two pleas in law, the first alleging infringement of Article 25(1)(b) of Regulation No 6/2002, read in conjunction with Article 6 of that regulation, and the second alleging infringement of Articles 62 and 64 of that regulation.

The first plea, alleging infringement of the combined provisions of Article 25(1)(b) and Article 6 of Regulation No 6/2002

13 In the first plea, the applicant essentially complains that the Board of Appeal was wrong to take the view that the contested design did not produce a different overall impression from that produced by the earlier design and that it therefore lacked individual character.

14 The applicant puts forward four complaints in support of the first plea. The first complaint concerns the determination of the designer’s degree of freedom, the second, the definition of the notion of informed user, the third, possible saturation of the state of the art and the fourth, the assessment of individual character.

15 In the interests of clarity, it is appropriate to examine, first, the complaint relating to the definition of the informed user, second, the complaint regarding the determination of the designer’s degree of freedom, third, the complaint relating to the assessment of individual character and, fourth, the complaint regarding possible saturation of the state of the art.

16 The applicant submits that, by referring, in paragraph 30 of the contested decision, to the users of ‘concrete posts’, whereas this case concerns paint spray guns, the Board of Appeal has failed correctly to state the reasons for its decision. According to the applicant, the Board of Appeal has thus infringed Article 62 of Regulation No 6/2002, which provides that decisions of EUIPO are to state the reasons on which they are based, as well as Article 6(1)(b) of that regulation, referring to the notion of the ‘informed user’ when analysing individual character.

17 In addition, the applicant claims that, in the present case, the informed user will be aware of the essential components of spray paint guns, of the prior state of the art in that sector and of the limitations of design freedom in that respect.

19 With regard to the interpretation of the notion of informed user, the status of ‘user’ implies that the person concerned uses the product in which the design is incorporated, in accordance with the purpose for which that product is intended. The qualifier ‘informed’ suggests in addition 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 interest in the products concerned, shows a relatively high degree of attention when he uses them (see judgment of 15 October 2015, Promarc Technics v OHIM — PIS (Part of door), T‑251/14, not published, EU:T:2015:780, paragraph 42 and the case-law cited).

20 The notion 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 notion 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 personal experience or his extensive knowledge of the sector in question (see judgment of 15 October 2015, Part of door, T‑251/14, not published, EU:T:2015:780, paragraph 43 and the case-law cited).

21 Moreover, the first sentence of Article 62 of Regulation No 6/2002 provides that decisions of EUIPO must state the reasons on which they are based. That obligation to state reasons has the same scope as that under Article 296 TFEU, pursuant to which the reasoning of the author of the act must be shown clearly and unequivocally, and its purpose is twofold: first, to enable the persons concerned to ascertain the reasons for the measure taken in order to defend their rights and, second, to enable the European Union Courts to exercise their power to review the legality of the decision. The Boards of Appeal cannot, however, be required to provide an account that follows exhaustively and one by one all the lines of reasoning articulated by the parties before them. The reasoning may therefore be implicit, on condition that it enables the persons concerned to know the reasons for the Board of Appeal’s decision and provides the competent Court with sufficient material for it to exercise its power of review (judgments of 25 April 2013, Bell & Ross v OHIM — KIN (Wristwatch case), T‑80/10, not published, EU:T:2013:214, paragraph 37, and of 18 November 2015, Liu v OHIM — DSN Marketing (Case for a portable computer), T‑813/14, not published, EU:T:2015:868, paragraph 15).

22 Moreover, it should be noted that the obligation to give reasons for decisions is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure. The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds contain errors, those errors will affect the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect (see judgment of 25 April 2013, Wristwatch case, T‑80/10, not published, EU:T:2013:214, paragraph 38 and the case-law cited).

23 In the present case, the Board of Appeal stated, in paragraph 30 of the contested decision, as regards the definition of the informed user within the meaning of Article 6(1) of Regulation No 6/2002, that ‘the informed user is neither the manufacturer nor a seller of pre-stressed concrete posts, but the person who uses such posts. Without being a designer or a technical expert, the informed user knows the product range available on the market, possesses a certain degree of knowledge with regard to the features which such posts normally include, and, as a result of his interest, shows a relatively high degree of attention when using them’, that definition being illustrated by several references to case-law.

24 Even though the Board of Appeal referred, in paragraph 30 of the contested decision, to users of ‘concrete posts’, it nevertheless mentioned, in paragraphs 31 and 32 of the contested decision, ‘spray gun users’ and their knowledge of the essential components of ‘existing paint spray guns’.

25 It is thus apparent from the context in which the contested decision was drafted that the incorrect reference to the manufacturer or seller of ‘concrete posts’ in paragraph 30 of the contested decision is due to the fact that the Board of Appeal copied the notion of informed user in the case-law. Ultimately, the error is clarified by the context.

26 It follows that the complaint that the statement of reasons is insufficient must therefore be rejected as unfounded.

27 Moreover, the Board of Appeal considered that, due to his knowledge of existing paint spray guns, the informed user is aware of the essential components that a paint spray gun must possess and of the limitations on the design freedom in that regard.

28 Since that assessment, which is not moreover disputed by the applicant, is correct, it must be confirmed.

29 The applicant argues that the Board of Appeal, when assessing individual character, did not properly take into consideration the degree of freedom of the designer in developing the design. In this respect, it contends that the design freedom for designers of paint spray guns is limited due to inherent technical constraints and constructional concepts applicable to such devices. According to the applicant, the designer cannot vary the common constructive concept or add or remove material from any of the functional elements and surfaces. He can only to a certain extent influence the specific appearance of certain aspects of such components, for example, by using colours, straight or curved lines, adapting the shapes of the knobs or screws, or creating a lighter or more compact look.

31 It has been held that 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).

32 Consequently, the greater the freedom of the designer in developing a design, the less likely it is that minor differences between the designs being compared will be sufficient to produce a different overall impression on an informed user. Conversely, the more the freedom of the designer in developing a design is restricted, the more likely it is that minor differences between the designs being compared will be sufficient to produce a different overall impression on an informed user. Therefore, if the designer enjoys a high degree of freedom in developing a design, that reinforces the conclusion that the designs being compared which do not display significant differences will produce the same overall impression on an informed user (see judgment of 29 October 2015, Single control handle faucet, T‑334/14, not published, EU:T:2015:817, paragraph 36 and the case-law cited).

33 In the present case, the Board of Appeal noted, in paragraph 26 of the contested decision, that it is common ground between the parties that the freedom of the designer is limited with regard to the gun-shape of the body and the essential components of a paint spray gun, namely the handle, the trigger, the muzzle, the devices for adjustment of paint flow and trigger movement and the connecting parts for the paint and the pressurised air. However, it found, in paragraph 27 of the contested decision, that, despite the fact all these components perform a technical function, there is a considerable degree of design freedom with regard to their appearance and specific arrangement and as to how they are fixed to the gun body.

34 In that regard, it should be observed that it is apparent from the material in the case file that paint spray guns follow the same basic concept by sharing the same basic shape of a gun and the components necessary for their function of painting, namely the handle, the trigger and the muzzle, as well as the devices for adjustment of paint flow and pressurised air. However, as the various examples of designs which appear in the case file show, the existence a shared shape and shared components does not entail identity of paint spray guns which, for technical reasons, would totally exclude or limit design freedom. On the contrary, it is perfectly possible that the size, the shape of the handle, the weight, the structure and the arrangement of the components of paint spray guns will vary from one design to another.

35 Consequently, the Board of Appeal was right to find that there is a considerable degree of design freedom for paint spray guns with regard to their appearance and specific arrangement.

37 The applicant claims that the differences between the designs at issue are clearly visible and that the combination of these various differences clearly creates a different overall impression between the designs. It argues, in essence, first, that the earlier design creates a massive, compact and horizontal overall impression, while the contested design appears more vertically structured, tall and lightweight. Secondly, the applicant claims that the Board of Appeal erred in not taking into account the designer’s degree of freedom and the manner in which paint spray guns are used. Thirdly, the applicant points out that the Board of Appeal has erroneously interpreted the use of colour when comparing the overall impressions produced by the designs at issue. Finally, the applicant criticises the Board of Appeal for wrongly assessing the individual character of the contested design by reference to the notion of ‘déjà vu’. In this respect, the applicant considers that this expression, which is used to refer to a rather vague recollection, is unsuitable for an examination of the individual character of designs, whereby the contested design and the existing design corpus should be the object of a detailed, side-by-side comparison.

39 According to settled 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 taking account of any differences that are insufficiently significant to affect that overall impression, even though they may be more than insignificant details, but taking account of differences that are sufficiently marked so as to produce dissimilar overall impressions (see judgment of 4 July 2017, Murphy v EUIPO — Nike Innovate (Electronic wristband), T‑90/16, not published, EU:T:2017:464, paragraph 43 and the case-law cited).

40 In the present case, the Board of Appeal found, in paragraphs 37 and 38 of the contested decision, that the designs at issue only differ in ‘small details’, namely the use of the colours green and yellow, the shape and position of the colour system at the bottom of the handle and the nozzle, the shape of the tail ends of the two screws which is flattened in the contested design and conical shaped in the earlier design, the aperture below the hook which is squared in the contested design and circular in the earlier design, and the shape of the handle, which is slimmer and slightly protruding in the contested design and broader and flat in the earlier design. In that regard, the Board of Appeal was right to find that, while these differences cannot be considered immaterial within the meaning of Article 5(2) of Regulation No 6/2002, they are nevertheless insufficient to produce a different overall impression on the informed user.

41 Next, the Board of Appeal stated in paragraph 39 of the contested decision that the underlying design concept can only be relevant to the extent that it manifests itself in the design. Thus, the overall impression is formed by the design’s features of appearance and not by the alleged intentions of the designer when developing the design. Accordingly, given that the designs at issue coincide in most of their features of appearance, the Board of Appeal was right to find that the fact that the contested design appears to be slightly slimmer than the earlier design cannot counteract this overall coincidence.

42 Moreover, the Board of Appeal observed, in paragraph 40 of the contested decision, that it does not automatically follow from the technical function of the components of a paint spray gun that all these components must have identical features of appearance. On the contrary, the examples of competing products provided by the applicant show that the appearance of all these components, namely the gun body, the spray head, the trigger and the handle might vary in shape and proportions. The Board of Appeal was therefore right to find that, despite the fact that the informed user will not give great weight to the presence of these components on account of their technical function, he has no reason to ignore their specific appearance in the overall impression.

43 The Board of Appeal was therefore correct to conclude, in paragraph 42 of the contested decision, that the contested design lacks individual character.

44 In the light of the foregoing, the applicant’s claims are not capable of calling in question the Board of Appeal’s assessments and conclusion. First, as regards the vertical, tall and lightweight structure of the contested design, it should be pointed out that the comparison of the two designs at issue placed side by side shows that the dominance of the vertical lines in the contested design does not display a significant difference with the horizontal alignment of the earlier design, the two designs at issue being highly similar. Accordingly, given that the more vertical, tall and lightweight general appearance of the contested design in relation to the appearance of the earlier design is not noteworthy, it must be held that the alignment of the components of the designs at issue is insignificant.

45 Second, as regards the applicant’s argument that the Board of Appeal failed to take into consideration the designer’s degree of freedom and the manner in which paint spray guns are used, it must be stated, as was established in paragraphs 34 and 35 above, that the existence of a shared shape and shared components of paint spray guns does not entail identity which, for technical reasons, would totally exclude or limit design freedom. Consequently, given that there is a considerable degree of design freedom for paint spray guns with regard to their appearance and specific arrangement, the assessed differences, being minor, are insufficient to produce a different overall impression.

46 In that regard, it must be held that the foregoing considerations cannot be invalidated by the survey conducted in China with users of paint spray guns submitted by the applicant before the Board of Appeal and from which it is apparent that such users were able to find differences between the designs at issue. In any event, that survey merely revealed the existence of minor differences between the designs at issue which cannot justify a finding of a different overall impression.

47 Third, as regards the applicant’s argument that the Board of Appeal erroneously interpreted the use of colour when comparing the overall impressions produced by the designs at issue, it should be noted that the Board of Appeal found, in paragraph 38 of the contested decision, that, with regard to the use of colour, the informed user understands that the black ring and black colour system of the earlier design indicate a colour contrast with the grey colour of the gun and that this contrast might be produced by using colours other than black. Nevertheless, the Board found that the informed user will not give particular importance to the addition of colour in the contested design. In that regard, given that what matters is the overall impression resulting from a side-by-side comparison between the designs at issue, the use of the colour green is not sufficient, either on its own or in combination with the other differences between the designs at issue, to create a different overall impression on the informed user. The Board of Appeal was therefore right to find that, although the use of green in the ring of the contested design constitutes a significant difference with the earlier design, it is not however capable of producing a different overall impression on the informed user.

48 Lastly, as regards the applicant’s argument that the Board of Appeal’s use of the expression ‘déjà vu’ is inappropriate, it should be specified that the use of the notion of ‘déjà vu’ is in keeping with settled case-law in this area, in particular, on the notion of the individual character of a design under Article 6(1) of Regulation No 6/2002, as recalled in paragraph 39 above.

49 In the light of all the foregoing, it must be stated, as was established in paragraphs 39 to 42 above, that after carrying out a comparison between the designs at issue, in paragraphs 34 to 36 of the contested decision, the Board of Appeal was right to conclude, in paragraphs 37 and 38 of the contested decision, that the differences between the designs at issue are insufficient to produce a different overall impression on the informed user.

51 The applicant criticises the Board of Appeal for not having addressed or applied the argument in relation to a saturation of earlier art.

52 In this respect, the applicant claims that the Board of Appeal did not take into account the fact that the saturation of the state of the art constitutes a further limitation to the design freedom of the designer and is capable of making the informed user more sensitive to the differences between the contested designs.

54 In accordance with case-law, although saturation of the state of the art cannot be said to limit the freedom of the designer, it may, once proven, make the user more attentive to the differences of detail between the conflicting designs. Consequently, a design may, due to saturation of the state of the art, have individual character resulting from features which, in the absence of saturation, would not tend to give rise to a different overall impression for an informed user (see judgment of 29 October 2015, Single control handle faucet, T‑334/14, not published, EU:T:2015:817, paragraph 83 and the case-law cited).

55 First, the Board of Appeal replied implicitly to the argument relating to the saturation of the state of the art, by finding, in paragraphs 23 to 29 of the contested decision, that ‘there is however a considerable degree of design freedom with regard to [the] appearance, [the] specific arrangement and as to how [the essential components] are fixed to the gun body’. It follows from that finding that the differences between the designs at issue would not tend to give rise to a different overall impression for an informed user even in the event of saturation of the state of the art. Accordingly, it must be held that, although it did not use the expression ‘saturation of the state of the art’, the Board of Appeal addressed that argument. The applicant’s argument alleging a failure to state reasons must therefore be rejected.

56 Second, it should be pointed out, as EUIPO stated, that the applicant merely repeated before the Board of Appeal established case-law as to how the assessment of the individual character of a design should be approached and mentioned, in that context, a possible impact of a saturation of the state of the art. Before the Board of Appeal, the applicant did not submit sufficient evidence to establish the existence of a saturation of the state of the art in the field of paint spray guns and submitted no evidence that that saturation of the state of the art may affect the informed user’s perception.

57 Moreover, it should be noted that the applicant has not submitted, in support of its complaint before the Court, other designs in order to substantiate its claims relating to the saturation of the state of the art. Thus, it did not establish, in the present case, that, on the date on which the application for registration of the contested design was lodged, the state of the art was saturated. In any event, the claimed existence of other designs before the Board of Appeal cannot be regarded as proof of the existence of a saturation of the state of the art capable of limiting the shapes available for paint spray guns.

58 In addition, as was established in paragraphs 33 to 35 above, there is a considerable degree of design freedom for paint spray guns with regard to their individual features and their specific arrangement, so that no saturation of the state of the art can be properly relied on.

59 Accordingly, in the light of the foregoing considerations, this complaint must be rejected.

The second plea, alleging infringement of Articles 62 and 64 of Regulation No 6/2002

60 In its second plea, the applicant raises two complaints. First, it alleges a breach of Article 64 of Regulation No 6/2002 on the ground that the Board of Appeal did not hold the oral proceedings requested. Second, it criticises the Board of Appeal for failing to fulfil its duty to give reasons, provided for in Article 62 of Regulation No 6/2002, by refusing the request for oral proceedings without any clear reasoning.

62 Article 64(1) of Regulation No 6/2002 provides that if EUIPO considers that oral proceedings would be expedient, they are to be held either at the instance of EUIPO or at the request of any party to the proceedings.

63 It follows from both that provision and the case-law that the Board of Appeal does have a certain amount of discretion as to the question of whether oral proceedings before it are genuinely necessary. That discretion regarding whether oral proceedings are necessary applies even where a party requests that oral proceedings be organised (see judgment of 13 December 2017, Delfin Wellness v EUIPO — Laher (Infrared and sauna cabins), T‑114/16, not published, EU:T:2017:899, paragraph 114 and the case-law cited).

64 In the present case, the applicant merely asserted before the Board of Appeal that oral proceedings would have been helpful to show it the paint spray guns at issue, thereby allowing for a better understanding of their working and the impact this has on the designs at issue.

65 It is however apparent from the case file and from the contested decision that the Board of Appeal had all the necessary evidence on which to base its decision, namely views in colour of the designs at issue and detailed descriptions of those designs and the manner in which they worked. It must therefore be stated that the applicant does not demonstrate whatsoever how oral proceedings would have been helpful in the present case and how the written procedure alone would not have been sufficient for the defence of its position.

66 Accordingly, in such circumstances, it must be held that there was no breach of Article 64 of Regulation No 6/2002.

67 Second, the applicant claims that there was a breach of Article 62 of Regulation No 6/2002, which lays down the obligation that decisions of EUIPO must state the reasons on which they are based. It submits that by refusing the request for oral proceedings without any clear reasoning, the Board of Appeal failed to fulfil its duty to give reasons.

68 As was stated in paragraph 21 above, according to settled case-law, the first sentence of Article 62 of Regulation No 6/2002 provides that decisions of EUIPO must state the reasons on which they are based. It is true that the Boards of Appeal are not obliged, in stating the reasons for the decisions which they may adopt, to take a view on all the arguments which the parties have put before them. It is sufficient if they set out the facts and legal considerations having decisive importance in the context of the decision (see judgment of 4 July 2017, Electronic wristband, T‑90/16, not published, EU:T:2017:464, paragraph 20 and the case-law cited).

69 In the present case, the Board of Appeal expressly stated, in paragraph 43 of the contested decision, that it did not find it expedient to hold oral proceedings pursuant to Article 64 of Regulation No 6/2002 on the ground that ‘it was not apparent to’ the Board ‘and not reasoned by the design holder what additional discussions or further statements relevant to the decision could have been added in oral proceedings, above and beyond its written submissions’.

70 It follows that, contrary to what the applicant claims, the Board of Appeal set out in a sufficiently clear and unequivocal manner the reasoning by which it rejected the request that oral proceedings be held.

71 The claim that the statement of reasons is insufficient must therefore be rejected as unfounded.

72 It follows from all of the foregoing that the second plea in law must be rejected and, therefore, that the action must be dismissed in its entirety.

73 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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by EUIPO.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Sata v EUIPO - Zhejiang Auarita Pneumatic Tools (Pistolet a peinture) (Community design - Invalidity proceedings - Judgment) [2018] EUECJ T-651/17 (29 November 2018) URL: http://www.bailii.org/eu/cases/EUECJ/2018/T65117.html Cite as: EU:T:2018:855, [2018] EUECJ T-651/17, ECLI:EU:T:2018:855

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