Nike wristband heeft voldoende eigen karakter

Gerecht EU 4 juli 2017, IEF 16922; IEFBE 2240; zaak T-90/16; ECLI:EU:T:2017:464 (Murphy tegen EUIPO) Gemeenschapsmodelrecht. Nietigheidsprocedure. Nike Innovate CV is houdster van het gemeenschapsmodel van een elektronische polsband. Volgens appellant staat dit model haaks op [model], en start een nietigheidsprocedure. Het beroep wordt afgewezen; het model van Nike Innovate CV ontbeert geen eigen karakter en wekt een andere algemene indruk. Het prior-art argument wordt verworpen.

72. That argument cannot be accepted. It does not follow from Regulation No 6/2002 that it is necessary to take into account the fact that the prior design was, at the time of its registration, a significant advance in relation to the prior art in order to determine whether the contested design has an individual character. Furthermore, with regard to the national judgment invoked by the applicant, it must be recalled that the legality of decisions of the Board of Appeal must be assessed solely on the basis of Regulation No 6/2002, as interpreted by the Courts of the European Union, and not on the basis of national decisions, even where the latter are based on provisions analogous to those of that regulation (see, by analogy, judgment of 29 October 2015, Éditions Quo Vadis v OHIM — Gómez Hernández (‘QUO VADIS’), T‑517/13, not published, EU:T:2015:816, paragraph 46 and the case-law cited). In addition, the new and unusual character of the first design does not prevent the informed user from perceiving the differences in subsequent designs (see, to that effect, judgment of 21 May 2015, Senz Technologies v OHIM — Impliva (Umbrellas), T‑22/13 and T‑23/13, EU:T:2015:310, paragraph 95). Lastly, and in any event, it must be recalled that the applicant has not proved that his design was, at the time of its registration, a significant advance in relation to the prior art (see paragraph 26 above) and that, moreover, he does not claim to have done so.

73. Moreover, at the hearing, the applicant stated that EUIPO had accepted the date of 22 June 2012 as the date of priority of the contested design, this being the date on which the intervener filed the patent application with the United States Patent and Trademark Office (USPTO) for the contested design. EUIPO, according to the applicant, therefore found that the photograph of the contested design, reproduced in paragraph 2 above, was equivalent to the outline in that patent application. According to the applicant, EUIPO therefore should have found that the prior design, which is also an outline, was in essence equivalent to the photograph of the contested design.

74. In that regard, suffice it to note that the outline in the patent application filed with USPTO for a transparent wristband is indeed equivalent to the photograph of the contested design featured in paragraph 2 above and that that outline is not more similar to the prior design than is the photograph reproduced in paragraph 2 above. The applicant’s argument must therefore be rejected as unfounded, without it being necessary to examine whether it is inadmissible, as has been argued by EUIPO. 

75. It follows from all of the foregoing that the third plea in law must be rejected and, consequently, that the action must be dismissed in its entirety.

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