Details in visible features
Gerecht EU 9 september 2011, zaak T-10/08 (Kwang Yang Motor / OHMI - Honda Giken Kogyo)
Gerecht EU 9 september 2011, zaak T-11/08 (Kwang Yang Motor tegen OHMI - Honda Giken Kogyo)
Gemeenschapstekeningen of -modellen. Vernietigingsprocedure. Beroep door de houder van gemeenschapstekening of -model nr 000163290 0001 (afbeelding van een verbrandingsmotor) en 000163290 0002 ingesteld en strekkende tot vernietiging van beslissing R 1337/2006-3 van de derde kamer van beroep van het Bureau voor harmonisatie binnen de interne markt (BHIM) van 8 oktober 2007 houdende vernietiging van de afwijzing door de nietigheidsafdeling van de door Honda Giken Kogyo ingestelde vordering tot nietigverklaring.
De zichtbare elementen zijn niet technisch bepaald ondanks de complexiteit van het product, geen algemene gelijke indruk. Vernietiging afgewezen
37 As appears from the representations of engines produced by the intervener during the proceedings before OHIM and the General Court, there are designs for internal combustion engines in varying shapes and configurations which differ considerably from those used in the challenged design. Internal combustion engines exist in a wide variety of shapes and combinations of components, as the informed user of such an engine, who has some knowledge of the relevant industrial sector, is aware. Those documents show, for example, that the fuel tank may also be placed on the lateral side of the engine rather than on the top, and that the air filter may also be positioned on the lateral or underside of the engine. Thus there are differences between the shapes of the components of an internal combustion engine and their arrangement, which shows the possibility of variations and differences in the design of internal combustion engines. It follows that the placement of those components is not dictated by functional requirements. Therefore, the general appearance of the visible features of the internal combustion engine is not determined by technical constraints. Since the positioning and shape of the components of an internal combustion engine are not limited by any particular technical necessity, the designer’s degree of creativity with respect to such internal combustion engines is not limited.
42 In that connection, it must be held that the Board of Appeal’s assessment is not vitiated by an error. The upper sides of the designs at issue are similar in appearance, both as regards the general shape of the internal combustion engines and as regards their components and their position. The front and lateral sides of the designs at issue are also similar. The filter cover, the fuel tank, the vent and the muffler cover are arranged in an identical manner in the designs at issue. The vent in the challenged design has a rounded shape with straight openings at the rear of the engine. The crescent or ‘c’ shaped fuel tank in the challenged design is almost identical to that in the earlier design and the fuel tank is situated in the same place in the designs at issue. Furthermore, the proportions, arrangements, layouts, sizes and shapes of the components of the internal combustion engine are almost identical in the designs at issue.
43 The shape, dimensions and arrangement of the various components of the internal combustion engine are more important than differences in details. The two designs at issue produce identical impressions on account of the shape and arrangement of their principal components and have the same basic structure.
44 The details relied on by the applicant cannot have any impact on the overall impression produced on an informed user by the two internal combustion engines represented by the designs at issue. An informed user will be guided by the basic structures alone and not by differences in the details, which do not produce different overall impressions on him.
