In 2010 acquired the Chinese company Zhejiang Zhongneng Industry Group from the European Union Intellectual Property Office (euipo) the registration of the following Community design (hereinafter: Zhejiang motor scooter):
In 2014 presented the Italian company Piaggio & C. an application to the EUIPO for a declaration of invalidity of this design and pointed out, that it is him in relation to the public 2005 Design patent made available "Vespa LX" (hereinafter: Vespa LX scooter, vgl. Pictures below) with the contours and shape features of the famous motorcycle („Vespa“), an Italian design icon since 1945, lack of novelty and individuality. In addition, the Vespa LX scooter is protected by copyright in Italy as an unregistered three-dimensional trademark and in France and Italy as a creative work.
The EUIPO dismissed Piaggio's application for a declaration of invalidity with a decision dating from the year 2015 back. In response to a complaint filed by Piaggio, this decision was made in 2018 bestätigt.
With today's judgment, the General Court of the European Union dismisses Piaggio's action for annulment of the EUIPO's decision and thus confirms its legality.
The court points this out in advance, that the protection of a design according to the Community Design Regulation1 is only guaranteed, as far as it is new and has its own character. It first notes, that Piaggio, for one, the missing novelty of Zhejiang- Motorrollers no longer asserted and, on the other hand, only singled out the Vespa LX motor scooter in comparison to the pre-existing shape treasure of older design patents, and executes, that the EUIPO has correctly determined, that the Zhejiang scooter and the Vespa LX scooter produced a different overall impression and that the former had individuality in relation to the latter. While the Zhejiang motor scooter essentially has angular contours, round lines are the focus of the Vespa LX scooter. Also, the shape characteristics of the Vespa LX scooter are not found in the Zhejiang scooter, while the dividing
Differences between the two are numerous and significant and will not escape the attention of the informed user.
The court goes on, that the EUIPO could not establish on the basis of Piaggio's submissions, that the Zhejiang scooter the unregistered
used three-dimensional trademark regarding the Vespa LX scooter. Insoweit
emphasizes the court, that the relevant public, that come into question for the purchase of a scooter and show an increased level of attention, that style, the contours and appearance, that characterize the Vespa LX scooter, perceive visually differently than the style, the contours and appearance of the Zhejiang scooter. Because of the different impressions, which are mediated by the two motor scooters, there is no risk of confusion among the relevant public.
Finally, the General Court confirms the EUIPO's position, that a violation of
Piaggio copyrights on the Vespa LX scooter in Italy and France
is excluded. The Vespa LX motor scooter - which is protected by Italian and French copyright law as a concrete embodiment of the creative core idea of the original "Vespa", than he their shape features and their specific overall appearance in the sense of a "round, feminine vintage character "embodied - was embodied by the Zhejiang- Motor scooters not used without permission
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