REUIPO

EUROPEAN UNION

INTELLECTUAL PROPERTY OFFICE

BUSINESS OPERATIONS DEPARTMENT

INVALIDITY No I 130 824

Terria, Puisieux, France (applicant), represented by Valérie Crèvecoeur, 2 B, place des Coquets, 76130 Mont Saint-Aignan, France (professional representative)

against

[…] Sunrise Leisure Products Co., Ltd., […], China (holder), represented by José Izquierdo X, […], […], 48011 Bilbao (Vizcaya), Spain (professional representative).

On 04/02/2026, the Invalidity Division takes the following

DECISION

1.

The application for a declaration of invalidity is upheld.

2.

Registered EU design No 003149566-0001 is declared invalid.

3.

The holder bears the costs, fixed at EUR 720.

REASONS

The applicant filed an application for a declaration of invalidity ('the application') against EU design No 003149566-0001 ('the contested design'). The contested design was filed on 24/05/2016 and registered in the holder’s name.

The following products are indicated in the registration:

06-01

Swinging seats [garden furniture].

The registration contains the following views:

1.1

Avenida de Europa, 4, 03008 Alicante, Spain Tel. +34 965139100 www.euipo.europa.eu

1.2 1.3 1.4 1.5 1.6 1.7

The applicant invoked Article 25(1)(b) of the European Union design regulation (EUDR) in conjunction with Article 4(1), and Articles 5 and 6 EUDR.

For reasons of procedural economy, the Invalidity Division will first assess the contested design on the ground of lack of individual character pursuant to Article 6 EUDR.

Preliminary remark

As from 01/05/2025, Regulation (EC) No 6/2002 has been amended and Regulation (EC) No 2246/2002 has been repealed by Regulation (EU) No 2024/2822. Implementing regulation (EC) No 2245/2002 has been amended by Implementing Regulation (EU) No 2025/73. All the references in this decision to the EUDR and the European Union design implementing regulation (EUDIR) shall be understood as references to the Regulations currently in force, except where expressly indicated otherwise.

SUMMARY OF THE PARTIES’ ARGUMENTS

The applicant argues, inter alia, the following.

. The contested design lacks individual character within the meaning of Article 6 EUDR, since the overall impression it produces on the informed user does not differ from that of the design of rocking seat made available to the public when published in the Orca Senegal 2015/2016 catalogue available through the website https://calameo.com and announced on Orca Senegal’s Facebook account on 23/11/2015.

Decision on Invalidity No I 130 824

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The informed user, without being an expert or producer, is whoever habitually purchases a swinging seat and is familiar with the swinging/rocking seats available on the market by browsing through catalogues, visiting relevant stores or downloading information from the internet during the relevant period before the contested design’s filing date, mainly because of their own experience or interest in these products.

The designer’s degree of freedom of armchairs is almost unlimited since armchairs can take any combination of colours, patterns, shapes and materials. The only limitation for the designer is the fact that armchairs have to be functional, that is, they must include at least a seat, a backrest and two armrests (04/02/2014, T-357/12, Armchairs, EU:T:2014:55, § 21, 58). The case-law is also applicable to swinging/rocking chairs, including, the rockers allowing swinging/rocking movements.

Furthermore, the only elements necessary for fulfilling the function of a swinging/rocking seat are a seat with a back rest and any structure that allows for the user of the seat to swing. In all other aspects, the designer’s degree of freedom is essentially unlimited. It is, therefore, less likely that small differences between the compared designs would lead to the conclusion that they created a different overall impression on the informed user.

The overall shape, pattern, material, fabric and colour combination of the contested design does not produce a different overall impression on the informed user from that of the corresponding features of the design published prior to the contested design’s filing date.

In support of its observations, the applicant has submitted, inter alia, Exhibit D1 consisting of the following:

• a screenshot of the Orca Senegal Facebook page containing a post, dated 23/11/2015 and titled 'CATALOGUE ORCA SÉNÉGAL 2015-2016, with a reference to www.Y.com an URL of the catalogue publication on https://fr.calameo.com;

•

•

the Facebook web page URL;

screenshots from 'calameo’ website containing the title page of 'ORCA CATALOGUE, EDITION 2015/2016' (with a reference to www.Y.com); catalogue internal pages, including page 96;

a detailed view of page 96 in the catalogue, containing the following 'sensation double transat balancelle 2 places’ design

calaméo

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• https://www.calameo.com URL referring to the calameo web page with the catalogue. The holder was invited to submit observations on the application but did not reply. LACK OF INDIVIDUAL CHARACTER PURSUANT TO ARTICLE 6 EUDR According to Article 6(1)(b) EUDR, a registered EU design must be considered to have individual character if the overall impression it produces on the informed user differs from the overall impression produced on that user by any design that has been made available to the public before the filing date of the application for registration of the design for which protection is claimed or, if priority is claimed, the priority date. Article 6(2) EUDR states that, in assessing that individual character, the designer’s degree of freedom in developing the design must be taken into consideration.

a) Disclosure pursuant to Article 7 EUDR For the purpose of applying Article 6(1)(b) EUDR, a design will be deemed to have been made available to the public if it has been published following registration or otherwise, or exhibited, used in trade or otherwise disclosed, before the contested design filing date or, if a priority is claimed, before its priority date, except where these events could not reasonably have become known in the normal course of business to the circles specialised in the sector concerned, operating within the European Union. In principle, the onus is on the applicant to prove that a design has been disclosed. It is deemed to have been made available within the meaning of Article 7(1) EUDR if the applicant has proved the events constituting disclosure. It is for the party challenging the disclosure to rebut that presumption by establishing to the requisite legal standards that the circumstances of the case could reasonably have prevented the disclosure events from becoming known in the normal course of business to the circles specialised in the sector concerned, operating within the European Union (21/05/2015, T-22/13, Umbrellas, EU:T:2015:310, § 26; 21/05/2015, T-23/13, Umbrellas, EU:T:2015:310, § 26; 14/03/2018, T-651/16, Footwear, EU:T:2018:137, § 47). To determine whether a prior design has been disclosed, an overall assessment must take into account all the relevant circumstances of the particular case. Disclosure cannot be proved by means of probabilities or suppositions, but requires solid objective evidence. This evidence must be considered in its entirety. While some elements of the evidence may on their own be insufficient to demonstrate disclosure of a prior design, they may, when combined with each other or with other documents or information, contribute to proving disclosure. To assess the evidential value of a document, it is necessary to verify the plausibility and accuracy of the information it contains. Account must be taken of, inter alia, the origin of the document, the circumstances under which it came into being, the person to whom it was addressed and whether it appears, on the face of it, to be sound and reliable (17/05/2018, T-760/16, Fahrradkörbe, EU:T:2018:277, § 42; 27/02/2018, T-166/15, Étui pour téléphone portable, EU:T:2018:100, § 23-25; 09/03/2012, T-450/08, Flacons, EU:T:2012:117, § 24-26). According to Article 63(1) EUDR (before amendment), in proceedings before it, the Office must examine the facts of its own motion. However, in proceedings relating to a declaration of invalidity, the Office is restricted in this examination to the facts, evidence and arguments submitted by the parties and the relief sought.

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A design can be considered disclosed where it is proved that it was put on the market (21/05/2015, T-22/13, Umbrellas, EU:T:2015:310, § 36; 21/05/2015, T-23/13, Umbrellas, EU:T:2015:310, § 36), offered for sale in catalogues (22/10/2007, R 1401/2006-3, ORNAMENTACIÓN, § 25), imported from a country outside the EU (14/06/2011, T-68/10, Watches, EU:T:2011:269, § 31-32) or exhibited at a trade fair (14/03/2018, T-651/16, Footwear, EU:T:2018:137, § 67). When submitting catalogues, brochures and similar corporate materials as evidence of disclosure, it should be proved that they were distributed to the public. They can be combined or read in conjunction with other items of evidence (27/02/2020, T-159/19, Furniture, EU:T:2020:77, § 30-33). As a matter of principle, disclosures on the internet form part of the prior art. Posting an image of a design online constitutes disclosure for the purposes of Article 7(1) EUDR (14/03/2018, T-651/16, Footwear, EU:T:2018:137, § 50), unless circumstances alleged or disputed by the parties cast doubt on this disclosure. The evidence originating from the internet must contain all the information necessary to ascertain that the invoked design was disclosed to the public. In particular, it must contain the publication date (or other date when the design became available to the public), a clearly identifiable illustration of the invoked prior design and the source from which the evidence comes. All those particulars must be contained in the same piece of evidence without the need to search the internet (26/09/2023, R 531/2023-3, Tragetaschen (Teil von -), § 28 and the case-law cited). Therefore, if the accuracy of the information can only be verified by means of an internet search, the evidence is insufficient. For this reason, for example, the combination of a URL with a photograph of the invoked design is not sufficient as proof of disclosure. The URL together with the photograph does not show how and when the design was published on the corresponding web page. However, a combination of a URL with a complete screenshot or printout of the corresponding web page is, in principle, sufficient if (a) all the necessary information (as described above) can be seen from the screenshot or printout itself, or if (b) the printout or screenshot contains the invoked prior design and the date of disclosure and it can be concluded from the information embodied in the URL that it corresponds to the web page in the printout or screenshot (26/09/2023, R 531/2023-3, Tragetaschen (Teil von -), § 29). To prove disclosure of the 2015/2016 catalogue of a third party, the applicant submitted their Facebook post concerning the catalogue publication on another third party’s website, dated 23/11/2015. It follows from the submitted evidence, that the catalogue was available to the public prior to the contested design’s filing date on the internet. Although the internet screenshots themselves do not contain the URLs of the web pages from which they were taken, both items of evidence contain the source URLs in the form of a reference provided by the catalogue owner and the applicant. The holder was invited to submit observations on the application but did not reply. The facts and evidence as presented by the applicant are therefore considered to reflect reality. The invoked prior design incorporated in the ‘sensation double’ swinging seat design and as shown in the cited catalogue, is deemed to have been made available to the public within the meaning of Article 7(1) EUDR.

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b) Comparison of the prior and contested designs According to case-law, assessing the individual character of an EU design is, in essence, the result of a four-step examination. That examination consists in determining, firstly, the sector to which the products in which the design is intended to be incorporated or applied to belong; secondly, the informed user of those products in accordance with their purpose and, with reference to that informed user, their degree of awareness of the prior art and their level of attention when comparing the designs, directly if possible; thirdly, the designer’s degree of freedom in developing their design; and, fourthly, the outcome of the comparison of the designs at issue, taking into account the sector in question, the designer’s degree of freedom and the overall impressions produced on the informed user by the contested design and by any earlier design which has been made available to the public, taken individually (13/06/2019, T-74/18, Informationstafeln für Fahrzeuge, EU:T:2019:417, § 66, and the case-law cited therein). The sector concerned and the informed user To determine the sector to which the product of the contested design belongs (and hence the informed user and the degree of freedom of the designer in developing the design), it is appropriate to look at the design itself to specify the nature, intended purpose or function of the product. Taking the design itself into account may make it possible to better determine the product concerned within the wider category of products indicated in the registration (18/03/2010, T-9/07, metal rappers, EU:T:2010:96, § 56). The informed user is a legal fiction and the interpretation of that concept must be that the status of ‘user’ implies that the person concerned uses the product in which the design is incorporated, according to the purpose for which that product is intended. The qualifier ‘informed’ suggests that, without being a designer or a technical expert, the user is familiar with the various designs that exist in the sector concerned, possesses a certain degree of knowledge about the features which those designs normally include and, as a result of their interest in the products concerned, pays a relatively high degree of attention when they use them (18/10/2018, T-368/17, Electrically operated lifting column, in particular for tables, EU:T:2018:695, § 26 and the case-law cited therein). In the present case, the products incorporating the contested design are swinging seats intended for exterior use as garden furniture. The informed user, without being an expert or producer, is therefore a person who is familiar with exterior swinging seats available on the market during the relevant period before the contested design’s filing date, mainly because of their own experience or interest in these products. The Invalidity Division also agrees with the applicant that the informed user is familiar with rocking seats representing the same type of products and that the user browses through catalogues, visits relevant stores or downloads information from the internet when showing their interest in these products. The designer’s freedom The greater the designer’s freedom in developing the contested design, the less likely it is that minor differences between the conflicting designs will be sufficient to produce a different overall impression, and vice versa (09/09/2011, T-10/08, Internal combustion engine, EU:T:2011:446, § 33). This factor does not determine, however, how different they have to be. It only moderates the assessment of the individual character of the

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contested design (10/09/2015, T-525/13, Sacs à main, EU:T:2015:617, § 35), including the weight to be given to certain features or elements in the overall impression. The designer’s freedom is limited in particular as regards those features imposed by the technical function of the product or an element thereof, or by statutory requirements, resulting in a standardisation of certain features (18/03/2010, T-9/07, metal rappers, EU:T:2010:96, § 67), which thus apply to all designs intended for use in the products concerned. However, the fact that the intended purpose of a product requires the presence of certain features does not automatically imply a limitation of the designer’s freedom (14/06/2011, T-68/10, Watches, EU:T:2011:269, § 69). The applicant refers in that respect to the General Court judgment 04/02/2014, T-357/12, Armchairs, EU:T:2014:55 (§ 21, 58) as relevant case-law for exterior swinging seats. The Invalidity Division agrees with the applicant. Furthermore, it observes that the Third Board of Appeal found the designer’s degree of freedom in developing a rocking chair that has very similar characteristics as the swinging seat incorporating the contested design, high. According to the Board, in relation to rocking chairs, the designer’s degree of freedom is limited to the extent that they must be functional, that is to say they must at least include a seat with a back rest and be constructed in a way that allows the user of the chair to rock. However, as regards the size and shape of the seat, the construction of the chair and the materials used, the designer’s degree of freedom is almost unlimited. The functional requirement of a rocking chair is, in principle, fulfilled by any sort of curved structure like, for example, skids or rings that allows the user of the chair to rock (14/06/2012, R 2194/2010-3, Rocking-chairs, § 25 and 26).

In accordance with the case-law cited above, only minor differences between the prior and the contested designs will be insufficient to produce different overall impressions on the informed user. The overall impression The comparison of the overall impressions conveyed by the designs must be synthetic and cannot be limited to a purely analytical comparison of a list of similarities and differences (13/06/2017, T-9/15, Dosen [für Getränke], EU:T:2017:386, § 79). It must be an all-inclusive comparison, allowing the overall impression produced by the design at issue to be determined in a sufficiently precise and certain manner (14/06/2011, T-68/10, Watches, EU:T:2011:269, § 73). The individual character of a design results from the overall impression of difference it has on the informed user with reference to the existing design corpus, discarding those differences that do not affect the overall impression even though they go beyond insignificant details (07/11/2013, T-666/11, Z AA, EU:T:2013:584, § 29). The very nature of the informed user implies that, as far as possible, they make a direct comparison between the prior design and the contested design (18/10/2012, C-101/11 P, Ornamentación, EU:C:2012:641, § 54; 18/10/2012, C-102/11 P, Ornamentación, EU:C:2012:641, § 54).

Decision on Invalidity No I 130 824

The compared designs are shown below with their corresponding views:

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Decision on Invalidity No I 130 824

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Prior design

Contested design

According to the applicant, the prior and contested designs coincide in the following features:

•

a C-shaped laying area, forming the seat and backrest in a single ergonomic piece, curved and designed to accommodate the full length of a user’s body;

•

•

•

•

•

the C-shaped profile followed by a smooth, wave-like line extending from the headrest to the lower leg area; the backrest integrated into the seat, forming a continuous surface; the supporting structure made up of a lower and an upper bow shape, placed laterally and connected at an angle of approximately 90 degrees; two curved armrests subtly incorporated into the frame structure; the geometry of these circular elements allowing the seat to rest on the curved edges of the bows, facilitating the rocking motion; the connection between the seat and the supporting structure achieved through visible rods or tubular bars, creating a frame that is minimalistic and open in appearance; two dark (black) cushions positioned at the top of the headrest and integrated into the seat structure; the seat covered with two-toned textile material: the upper part of the rocking seat made of light-coloured fabric, while the lower part made of dark (black) fabric; the overall impression of a minimalist, modern outdoor rocking seat, with an emphasis on smooth contours, functional lines, bicolour textiles and a lightweight frame construction.

The Invalidity Division notes, contrary to the applicant’s observations, that the compared designs do not completely correspond in their frame construction, although in the majority of the features, the designs do coincide as the applicant declares.

Both designs have the same C-profile bar structure of a seat with an extended support for legs and overhead protection. In both designs, the structure is covered with a light colour material in the overhead part, contrasting with a darker material of the seat area and a dark leather-like covering for the pairs of head and hand supports. Even though the colour shades may slightly differ in both designs, the type of material and particular colours chosen in both designs seem to coincide. The designs coincide also in details, such as the decorative endings of the bar structure.

The only difference between the designs is in the rocking part of the bar structure: whereas the rocking rods of the prior design form one piece with the arm rests, the rods and armrests of the contested design are interrupted and are connected by two vertical bars. In any case, in both designs, the rocking rods and armrests are convex with respect to each other, they are made of the same type of bars, and they are equipped with the

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same leather-like arm protection and with the same or very similar decorative rocking stoppers. In the overall impression produced by the designs the similarities relate to the essential features. Apart from the technical constraints mentioned above, namely that the seat must be constructed in a way to allow its user to rock, there are features in which the designer was free to develop the contested design. The combination of a long-curved seat and overhead covering with the bar structure, defines the designs’ characteristic appearance. The overall impression they produce is determined by that combination, that will also attract the informed user’s attention. Since the bars forming the armrests and rocking rods are the same regarding their thickness and other visual characteristics, and their position with respect to each other is similar in both designs, the informed user will pay less attention to the difference between them. The same applies to any difference in the material and tone of covering. They have little impact on the overall impression and will be perceived as mere alterations to the common features. Therefore, the Invalidity Division takes the view that the contested design does not create a different overall impression on the informed user to the prior design. This is because it reproduces all, except one, essential characteristic of the prior design and, in order to differentiate itself, simply modifies a small part of the bar structure with a minor visual impact on the informed user. As a result, the contested design lacks individual character within the meaning of Article 6 EUDR. CONCLUSION The facts and evidence submitted by the applicant support the grounds for invalidity under Article 25(1)(b) EUDR in conjunction with Article 6 EUDR. Therefore, the application is upheld and the contested design is declared invalid. Since the application is fully successful on this ground and invoked designs, there is no need to examine the other ground of Article 25(1)(b) EUDR invoked in the application, namely that in conjunction with Article 5 EUDR, nor the other designs also invoked in the application. COSTS According to Article 70(1) EUDR, the losing party in invalidity proceedings must bear the fees and costs incurred by the other party. Since the holder is the losing party, it must bear the invalidity fee as well as the costs incurred by the applicant in the course of these proceedings. According to Article 70(1) EUDR and Article 79(7)(f) EUDIR, the costs to be paid to the applicant are the costs of representation, which are to be fixed on the basis of the maximum rate set therein, and the costs of the invalidity fee.

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AB AC AD

The Invalidity Division AE ČELIŠOVÁ

AG AH

According to Article 56 EUDR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 57 EUDR, notice of appeal must be filed in writing at the Office within two months of the date of notification of this decision. Furthermore, a written statement of the grounds of appeal must be filed within four months of the same date. The notice of appeal will be deemed to have been filed only when the appeal fee of EUR 720 has been paid.

The amount determined in the fixing of costs may only be reviewed on request. According to Article 79(4) EUDIR, such a request must be filed within one month from the date of notification of this fixing of costs and will be deemed to have been filed only when the review fee of EUR 100 has been paid (Annex (14) to EUDR).