Fons Iuris
Torna alla ricerca
Corte di giustizia UEsentenza

Corte di giustizia UE n. 207/2019

ECLI:EU:T:2019:4
Testo integrale del provvedimento

Testo integrale del provvedimento

[OSCURATO:PERSONA] ([OSCURATO:PERSONA])

15 January 2019 ( * ) (EU trade mark — Application for the EU figurative mark [OSCURATO:PERSONA] — Absolute ground for refusal — Late filing of the notice of appeal — Inadmissibility of the appeal before the [OSCURATO:PERSONA] of Appeal — [OSCURATO:PERSONA] 60 of [OSCURATO:PERSONA] (EC) No 207/2009 (now [OSCURATO:PERSONA] 68 of [OSCURATO:PERSONA] (EU) 2017/1001) — Rule 49(1) of [OSCURATO:PERSONA] (EC) No 2868/95 (now [OSCURATO:PERSONA] 23(1)(b) of [OSCURATO:PERSONA] (EU) 2018/625))

[OSCURATO:PERSONA] T‑111/17,

[OSCURATO:PERSONA],

established in Sofia (Bulgaria), represented by B. Dimitrova, lawyer, applicant, v

[OSCURATO:PERSONA] (EUIPO),

represented by J. Ivanauskas, acting as Agent, defendant, ACTION brought against the decision of the [OSCURATO:PERSONA] of Appeal of EUIPO of 13 December 2016 ([OSCURATO:PERSONA] R 1778/2016-2), relating to an application for registration of the figurative sign [OSCURATO:PERSONA] as an EU trade mark,

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]),

composed of H. [OSCURATO:PERSONA], [OSCURATO:PERSONA], L. [OSCURATO:PERSONA]-[OSCURATO:PERSONA][OSCURATO:PERSONA] (Rapporteur) and

I. [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA]: E. Coulon, having regard to the application lodged at the [OSCURATO:PERSONA] on 20 February 2017, having regard to the response of EUIPO lodged at the [OSCURATO:PERSONA] on 20 November 2017, having regard to the measures of organisation of procedure of 18 September 2018, having regard to the written questions from the [OSCURATO:PERSONA] to the applicant and its response to those questions lodged at the [OSCURATO:PERSONA] on 3 October 2018, having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to [OSCURATO:PERSONA] 106(3) of the Rules of Procedure of the [OSCURATO:PERSONA], gives the following, [OSCURATO:PERSONA] to the dispute 1 On 19 October 2015, the applicant, [OSCURATO:PERSONA], filed an application for registration of an EU trade mark with the [OSCURATO:PERSONA] (EUIPO) pursuant to [OSCURATO:PERSONA] (EC) No 207/2009 of 26 February 2009 on the [OSCURATO:PERSONA] trade mark (OJ 2009 L 78, p. 1) (replaced by [OSCURATO:PERSONA] (EU) 2017/1001 of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] of 14 June 2017 on the [OSCURATO:PERSONA] trade mark (OJ 2017 L 154, p. 1)). 2 Registration as a mark was sought for the following figurative sign: 3 The goods and services in respect of which registration was sought are in Classes 9, 37 and 42 of the [OSCURATO:PERSONA] concerning the [OSCURATO:PERSONA] of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended. 4 On 26 November 2015, the examiner sent the applicant a letter of provisional refusal of protection, on the ground that the application did not appear to be eligible for registration under [OSCURATO:PERSONA] 7(1)(b) and (c) of [OSCURATO:PERSONA] 207/2009 (now [OSCURATO:PERSONA] 7(1)(b) and (c) of [OSCURATO:PERSONA] 2017/1001), in conjunction with [OSCURATO:PERSONA] 7(2) of that regulation (now [OSCURATO:PERSONA] 7(2) of [OSCURATO:PERSONA] 2017/1001), in respect of all the goods and services applied for. 5 On 25 January 2016, the applicant responded to the provisional refusal. 6 By decision of 14 April 2016, the application for registration was refused by the examiner in respect of all the goods and services referred to in the application, pursuant to [OSCURATO:PERSONA] 7(1)(b) and (c) of [OSCURATO:PERSONA] 207/2009, read in conjunction with [OSCURATO:PERSONA] 7(2) of that regulation. 7 The decision was notified to the applicant by registered mail on 15 April 2016; however, the letter was returned to EUIPO with the indication ‘non reclamé’ (unclaimed), that is to say that it was not delivered to the addressee. 8 On 18 May 2016, the decision refusing registration of the trade mark applied for was again sent to the applicant by registered mail, and on 11 July 2016 EUIPO received an acknowledgement of receipt confirming that the letter had been duly received. 9 On 27 September 2016, EUIPO received the communication from the applicant entitled ‘Notice of appeal with statement of grounds’.

However, the communication contained only a statement of grounds, accompanied by various attachments. 10 On 29 September 2016, the [OSCURATO:PERSONA] of the Boards of Appeal notified the applicant of the failure to file a notice of appeal by the time limit set, in accordance with [OSCURATO:PERSONA] 60 of [OSCURATO:PERSONA] 207/2009 (now [OSCURATO:PERSONA] 68 of [OSCURATO:PERSONA] 2017/1001), that is on or before 28 July 2016, and of deficiency of payment pursuant to Rule 49(1) of [OSCURATO:PERSONA] (EC) No 2868/95 of 13 December 1995 implementing [OSCURATO:PERSONA] (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1) (now [OSCURATO:PERSONA] 23(1)(b) of [OSCURATO:PERSONA] (EU) 2018/625 of 5 March 2018, supplementing [OSCURATO:PERSONA] 2017/1001, and repealing [OSCURATO:PERSONA] (EU) 2017/1430 (OJ 2018 L 104, p. 1)).

EUIPO granted the applicant one month from the date of receipt of the notification in order to remedy those deficiencies. 11 On 29 September 2016, the applicant sent a copy of the order payment dated 26 July 2016. 12 On 5 October 2016, the [OSCURATO:PERSONA] of the Boards of Appeal acknowledged receipt of the applicant’s communication of 29 September 2016 and informed it that only the deficiency in the payment had been remedied and that no notice of appeal had been received within the appeal period, which expired on 28 July 2016.

Therefore the appeal was likely to be deemed inadmissible.

The applicant was invited to reply by the deadline stipulated in the notification of 29 September 2016. 13 On 6 October 2016, the applicant submitted a communication in reply with the subject ‘Reply to R425a of: 05/10/2016’.

The five pages attached thereto consisted of two electronic communication forms named ‘Communication — Notice of appeal’ and ‘Communication — File evidence of payment’.

Those forms dated 26 July 2016 bore the watermark ‘DRAFT’ in the background. 14 On 13 October 2016, the [OSCURATO:PERSONA] of the Boards of Appeal acknowledged receipt of the applicant’s communication of 6 October 2016.

The applicant was informed that the case would be forwarded to the [OSCURATO:PERSONA] of Appeal in due time and that the [OSCURATO:PERSONA] would take a decision on the admissibility of the appeal. 15 By decision of 13 December 2016 (‘the contested decision’), the [OSCURATO:PERSONA] of Appeal of EUIPO dismissed the appeal as inadmissible. 16 In its decision, the [OSCURATO:PERSONA] of Appeal found that the examiner’s decision to refuse the application for a trade mark was deemed to have been notified to the applicant on 28 May 2016 and that, therefore, the two-month time limit for filing an appeal expired on 28 July 2016. 17 According to the [OSCURATO:PERSONA] of Appeal, the applicant’s communication entitled ‘Notice of appeal with statement of grounds’, which had been received by EUIPO on 27 September 2016, did not contain the notice of appeal but only the statement of grounds and had been submitted outside the relevant time limit for filing the appeal. 18 [OSCURATO:PERSONA] of Appeal states that on 6 October 2016, the applicant submitted a copy of the communication entitled ‘Notice of appeal’ which was dated 26 July 2016, to which the notice of appeal was attached.

However, according to the [OSCURATO:PERSONA] of Appeal, as stated in the communication itself, this was in draft status, which implied that it had not been submitted to EUIPO. 19 In addition, the [OSCURATO:PERSONA] of Appeal states that it had itself carried out a detailed investigation and found no trace of that communication of the applicant recorded by EUIPO. 20 Consequently, the [OSCURATO:PERSONA] of Appeal dismissed the appeal as inadmissible on the ground that it had not been filed by the time limit prescribed, in accordance with [OSCURATO:PERSONA] 60 of [OSCURATO:PERSONA] 207/2009 (now [OSCURATO:PERSONA] 68 of [OSCURATO:PERSONA] 2017/1001).

Forms of order sought 21 The applicant claims, in essence, that the [OSCURATO:PERSONA] should annul the contested decision. 22 EUIPO contends that the [OSCURATO:PERSONA] should: – dismiss the action; – order the applicant to pay the costs.

Law 23 First of all, EUIPO, without formally raising a plea of inadmissibility, contends that the application does not meet the requirements of [OSCURATO:PERSONA] 177(1)(e) of the Rules of Procedure of the [OSCURATO:PERSONA] in that the action does not identify clearly the form of order sought in order to enable the [OSCURATO:PERSONA] to decide the case. 24 In that regard, it must be borne in mind that under the first paragraph of [OSCURATO:PERSONA] 21 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], applicable to the procedure before the [OSCURATO:PERSONA] by virtue of the first paragraph of [OSCURATO:PERSONA] 53 of that Statute, and [OSCURATO:PERSONA] 177(1)(d) of the Rules of Procedure of the [OSCURATO:PERSONA], all applications must indicate, in particular, a brief statement of the grounds relied on.

The information given must be sufficiently clear and precise to enable the defendant to prepare his defence and the [OSCURATO:PERSONA] to decide the case.

The same considerations also apply to all claims, which must be accompanied by pleas and arguments enabling both the defendant and the [OSCURATO:PERSONA] to assess their validity.

Thus, the essential elements of fact and of law on which the action is based must be indicated, at least in summary form, coherently and intelligibly in the application itself.

Similar requirements apply where a claim or an argument is relied on in support of a plea in law (judgment of 25 January 2018, SilverTours v EUIPO (billiger-mietwagen.de) , T‑866/16, not published, EU:T:2018:32, paragraph 47). 25 In the present case, it must be found that the application itself indicates, sufficiently clearly, that the present action seeks annulment of the decision by which the [OSCURATO:PERSONA] of Appeal found that the applicant’s appeal was inadmissible.

It is also apparent from the application that the applicant submits that the [OSCURATO:PERSONA] of Appeal erred in dismissing the appeal as inadmissible since the notice of appeal had been duly submitted by the time limit set.

According to the applicant, the [OSCURATO:PERSONA] of Appeal therefore infringed [OSCURATO:PERSONA] 60 of [OSCURATO:PERSONA] 207/2009. 26 The action must, therefore, be declared admissible. 27 In support of its action, the applicant relies on a single plea in law, alleging infringement of [OSCURATO:PERSONA] 60 of [OSCURATO:PERSONA] 207/2009.

The applicant submits, in essence, that the notice of appeal was duly filed by the time limit set. 28 It should be pointed out, first of all, as EUIPO notes, that the applicant does not dispute the [OSCURATO:PERSONA] of Appeal’s conclusion that the examiner’s decision to refuse registration of the mark applied for was deemed to have been duly notified on 28 May 2016 and that, therefore, the time limit for filing an appeal was set at 28 July 2016.

In addition, the payment of the appeal fee and the submission of the statement of grounds are not in dispute in the context of the present proceedings before the [OSCURATO:PERSONA]. 29 Consequently, the dispute concerns, essentially, the compliance with the obligation to file a notice of appeal by the time limit set. 30 In that regard, it must be pointed out that, in accordance with [OSCURATO:PERSONA] 60 of [OSCURATO:PERSONA] 207/2009, ‘notice of appeal must be filed in writing at [EUIPO] within two months after the date of notification of the decision appealed from’.

In addition, ‘the notice shall be deemed to have been filed only when the fee for appeal has been paid’.

Lastly, ‘within four months after the date of notification of the decision, a written statement setting out the grounds of appeal must be filed’. 31 Furthermore, Rule 49(1) of [OSCURATO:PERSONA] 2868/95 provides that if the appeal does not comply with [OSCURATO:PERSONA] 60 of [OSCURATO:PERSONA] 207/2009, it must be rejected as inadmissible, unless the deficiencies have been remedied before the relevant time limit laid down in that article has expired. 32 The applicant submits that it duly submitted the notice of appeal electronically on 26 July 2016, that is to say by means of its account in the user area of EUIPO’s website. 33 However, EUIPO states that neither on the given date, nor on any other date before the time limit set, that is 28 July 2016, did it receive the notice of appeal.

The first time that the [OSCURATO:PERSONA] of the Boards of Appeal received a communication from the applicant concerning the present appeal was on 27 September 2016, which contained only a statement of grounds. 34 After being informed by the [OSCURATO:PERSONA] of the Boards of Appeal that the notice of appeal had not been submitted by the time limit set, the applicant provided, on 6 October 2016, a copy of the communication entitled ‘Notice of appeal’ dated 26 July 2016 with the attached completed form of the notice of appeal. 35 However, it must be held, as correctly found by the [OSCURATO:PERSONA] of Appeal in paragraph 23 of the contested decision, that that evidence could not prove that the notice of appeal had been submitted as claimed by the applicant.

Indeed, the communication relied on by the applicant was marked ‘DRAFT’, which seems to indicate that it was not submitted to EUIPO. 36 In addition, it should be noted that by letter of 15 August 2016, EUIPO informed the applicant that it had received, on 28 July 2016, a payment without being able to determine its purpose.

That fact confirms that, contrary to the applicant’s claims, the communication of the notice of appeal had not reached EUIPO on 26 July 2016. 37 EUIPO contends that the notice of appeal did not reach it because, after preparing the respective communication, the applicant did not complete the whole process of submitting it to EUIPO. 38 In that regard, EUIPO contends that the process of submitting a notice of appeal electronically, as in place on 26 July 2016, required that a user be logged on in the user area of EUIPO’s website.

After selecting a trade mark in respect of which an appeal had to be filed, the user would have been taken to EUIPO’s tool ‘eSearch plus’.

There the user had to select the tab ‘Appeals’ and then go to the section ‘Actions and Communications’.

Once in that section, the user had to create a communication entitled ‘Notice of Appeal’ or ‘Notice of Appeal with statement of grounds’ and attach to it the actual notice of appeal.

After clicking on the button ‘Continue’, the communication would have appeared in ‘Draft’ status and the user would have had the possibility of saving it on his local drive in PDF format or of modifying it.

In order to finalise the process the user had to click on the button ‘Complete’ and the communication would have been submitted to EUIPO.

According to EUIPO, had such a communication been duly submitted, it would have appeared in the inbox of the user area from where the user would have been able to download it. 39 EUIPO’s arguments must be endorsed. 40 First, it must be pointed out that in order to assist users, the ‘frequently asked questions’ (FAQ) section guiding them through the process of filing a notice of appeal was accessible on EUIPO’s website.

In addition, users had the possibility of consulting the instructions regarding the functioning of the user area at the material time. 41 Secondly, the applicant’s explanations provided in its application confirm that the communication containing the notice of appeal was created, but not submitted.

Indeed, the applicant does not indicate that it performed the last step in the process for filing, namely clicking on the button ‘Complete’.

Consequently, the communication remained a draft. 42 Thirdly, it should be pointed out, as EUIPO notes, that unlike the communication relating to the notice of appeal, dated 26 July 2016, the applicant’s communication containing the statement of grounds of 27 September 2016 is not marked ‘DRAFT’, which confirms that it was duly submitted.

As the [OSCURATO:PERSONA] of Appeal noted in paragraphs 7 and 8 of the contested decision, that communication was indeed received by EUIPO on the given date. 43 It should also be pointed out, as the [OSCURATO:PERSONA] of Appeal notes, that even though the draft documents attached might potentially demonstrate that a notice of appeal had been prepared, they are not capable of proving that such a notice was sent to EUIPO within the prescribed period (see, to that effect, judgment of 6 December 2016,

[OSCURATO:PERSONA]

v

EUIPO — [OSCURATO:PERSONA] ([OSCURATO:PERSONA])

, T‑703/15, not published, EU:T:2016:707, paragraph 31).

In addition, the applicant fails to explain how those draft documents can prove that such a notice of appeal was submitted on 26 July 2016. 44 Consequently, in the absence of any evidence to the contrary adduced by the applicant, it must be found that the [OSCURATO:PERSONA] of Appeal correctly concluded that the applicant had not sent the notice of appeal on 26 July 2016, and that the notice cannot be considered to have been received by the time limit set and must, therefore, be rejected as inadmissible. 45 That conclusion cannot be called in question by the document lodged by the applicant as Annex 3 to its application, entitled ‘Communication — Notice of appeal’, dated 26 July 2016, since the applicant confirmed, in response to a question from the [OSCURATO:PERSONA], that it was a copy of the document with the same heading already lodged by it before the [OSCURATO:PERSONA] of Appeal on 6 October 2016, which contained the watermark ‘DRAFT’ in the background. 46 In addition, it must be found, as EUIPO notes, that the applicant could have submitted additional evidence to prove that the notice of appeal had been submitted by the time limit set.

Indeed, when a communication has been duly submitted using the user area, it should appear in the user’s inbox.

The applicant could, therefore, have submitted a screenshot from its user area to show, if necessary, that the communication containing the notice of appeal had been submitted, which it has failed to do. 47 As regards the applicant’s claims that it had several telephone conversations with EUIPO concerning the electronic procedure in question and was not informed of the need to undertake further action in order to submit its appeal, it suffices to note that there is no evidence on the file in that regard. 48 Lastly, as regards the applicant’s statement that the [OSCURATO:PERSONA] of the Boards of Appeal accepted the notice of appeal by its communication of 13 October 2016, it is clear from the wording of that communication that the [OSCURATO:PERSONA] of the Boards of Appeal acknowledged receipt of the applicant’s letter dated 6 October 2016 and informed it that the case would be forwarded to the [OSCURATO:PERSONA] of Appeal for it to assess the admissibility of the appeal.

Consequently, the communication of 13 October 2016 cannot be considered confirmation that the appeal was admissible. 49 In the light of all the foregoing, the action must be dismissed.

Costs 50 [OSCURATO:PERSONA] 134(1) of the Rules of Procedure, 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.

On those grounds,

[OSCURATO:PERSONA] ([OSCURATO:PERSONA])

hereby: 1. Dismisses the action; 2. [OSCURATO:PERSONA] to pay the costs. [OSCURATO:PERSONA][OSCURATO:PERSONA][OSCURATO:PERSONA] in open court in Luxembourg on 15 January 2019. E. Coulon

H. [OSCURATO:PERSONA]

* Language of the case: English.

Anonimizzato ex art. 52 D.Lgs. 196/2003
[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 15 January 2019 ( * ) (EU trade mark — Application for the EU figurative mark [OSCURATO:PERSONA] — Absolute ground for refusal — Late filing of the notice of appeal — Inadmissibility of the appeal before the [OSCURATO:PERSONA] of Appeal — [OSCURATO:PERSONA] 60 of [OSCURATO:PERSONA] (EC) No 207/2009 (now [OSCURATO:PERSONA] 68 of [OSCURATO:PERSONA] (EU) 2017/1001) — Rule 49(1) of [OSCURATO:PERSONA] (EC) No 2868/95 (now [OSCURATO:PERSONA] 23(1)(b) of [OSCURATO:PERSONA] (EU) 2018/625)) [OSCURATO:PERSONA] T‑111/17, [OSCURATO:PERSONA], established in Sofia (Bulgaria), represented by B. Dimitrova, lawyer, applicant, v [OSCURATO:PERSONA] (EUIPO), represented by J. Ivanauskas, acting as Agent, defendant, ACTION brought against the decision of the [OSCURATO:PERSONA] of Appeal of EUIPO of 13 December 2016 ([OSCURATO:PERSONA] R 1778/2016-2), relating to an application for registration of the figurative sign [OSCURATO:PERSONA] as an EU trade mark, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of H. [OSCURATO:PERSONA], [OSCURATO:PERSONA], L. [OSCURATO:PERSONA]-[OSCURATO:PERSONA][OSCURATO:PERSONA] (Rapporteur) and I. [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA]: E. Coulon, having regard to the application lodged at the [OSCURATO:PERSONA] on 20 February 2017, having regard to the response of EUIPO lodged at the [OSCURATO:PERSONA] on 20 November 2017, having regard to the measures of organisation of procedure of 18 September 2018, having regard to the written questions from the [OSCURATO:PERSONA] to the applicant and its response to those questions lodged at the [OSCURATO:PERSONA] on 3 October 2018, having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to [OSCURATO:PERSONA] 106(3) of the Rules of Procedure of the [OSCURATO:PERSONA], gives the following, [OSCURATO:PERSONA] to the dispute 1 On 19 October 2015, the applicant, [OSCURATO:PERSONA], filed an application for registration of an EU trade mark with the [OSCURATO:PERSONA] (EUIPO) pursuant to [OSCURATO:PERSONA] (EC) No 207/2009 of 26 February 2009 on the [OSCURATO:PERSONA] trade mark (OJ 2009 L 78, p. 1) (replaced by [OSCURATO:PERSONA] (EU) 2017/1001 of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] of 14 June 2017 on the [OSCURATO:PERSONA] trade mark (OJ 2017 L 154, p. 1)). 2 Registration as a mark was sought for the following figurative sign: 3 The goods and services in respect of which registration was sought are in Classes 9, 37 and 42 of the [OSCURATO:PERSONA] concerning the [OSCURATO:PERSONA] of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended. 4 On 26 November 2015, the examiner sent the applicant a letter of provisional refusal of protection, on the ground that the application did not appear to be eligible for registration under [OSCURATO:PERSONA] 7(1)(b) and (c) of [OSCURATO:PERSONA] 207/2009 (now [OSCURATO:PERSONA] 7(1)(b) and (c) of [OSCURATO:PERSONA] 2017/1001), in conjunction with [OSCURATO:PERSONA] 7(2) of that regulation (now [OSCURATO:PERSONA] 7(2) of [OSCURATO:PERSONA] 2017/1001), in respect of all the goods and services applied for. 5 On 25 January 2016, the applicant responded to the provisional refusal. 6 By decision of 14 April 2016, the application for registration was refused by the examiner in respect of all the goods and services referred to in the application, pursuant to [OSCURATO:PERSONA] 7(1)(b) and (c) of [OSCURATO:PERSONA] 207/2009, read in conjunction with [OSCURATO:PERSONA] 7(2) of that regulation. 7 The decision was notified to the applicant by registered mail on 15 April 2016; however, the letter was returned to EUIPO with the indication ‘non reclamé’ (unclaimed), that is to say that it was not delivered to the addressee. 8 On 18 May 2016, the decision refusing registration of the trade mark applied for was again sent to the applicant by registered mail, and on 11 July 2016 EUIPO received an acknowledgement of receipt confirming that the letter had been duly received. 9 On 27 September 2016, EUIPO received the communication from the applicant entitled ‘Notice of appeal with statement of grounds’. However, the communication contained only a statement of grounds, accompanied by various attachments. 10 On 29 September 2016, the [OSCURATO:PERSONA] of the Boards of Appeal notified the applicant of the failure to file a notice of appeal by the time limit set, in accordance with [OSCURATO:PERSONA] 60 of [OSCURATO:PERSONA] 207/2009 (now [OSCURATO:PERSONA] 68 of [OSCURATO:PERSONA] 2017/1001), that is on or before 28 July 2016, and of deficiency of payment pursuant to Rule 49(1) of [OSCURATO:PERSONA] (EC) No 2868/95 of 13 December 1995 implementing [OSCURATO:PERSONA] (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1) (now [OSCURATO:PERSONA] 23(1)(b) of [OSCURATO:PERSONA] (EU) 2018/625 of 5 March 2018, supplementing [OSCURATO:PERSONA] 2017/1001, and repealing [OSCURATO:PERSONA] (EU) 2017/1430 (OJ 2018 L 104, p. 1)). EUIPO granted the applicant one month from the date of receipt of the notification in order to remedy those deficiencies. 11 On 29 September 2016, the applicant sent a copy of the order payment dated 26 July 2016. 12 On 5 October 2016, the [OSCURATO:PERSONA] of the Boards of Appeal acknowledged receipt of the applicant’s communication of 29 September 2016 and informed it that only the deficiency in the payment had been remedied and that no notice of appeal had been received within the appeal period, which expired on 28 July 2016. Therefore the appeal was likely to be deemed inadmissible. The applicant was invited to reply by the deadline stipulated in the notification of 29 September 2016. 13 On 6 October 2016, the applicant submitted a communication in reply with the subject ‘Reply to R425a of: 05/10/2016’. The five pages attached thereto consisted of two electronic communication forms named ‘Communication — Notice of appeal’ and ‘Communication — File evidence of payment’. Those forms dated 26 July 2016 bore the watermark ‘DRAFT’ in the background. 14 On 13 October 2016, the [OSCURATO:PERSONA] of the Boards of Appeal acknowledged receipt of the applicant’s communication of 6 October 2016. The applicant was informed that the case would be forwarded to the [OSCURATO:PERSONA] of Appeal in due time and that the [OSCURATO:PERSONA] would take a decision on the admissibility of the appeal. 15 By decision of 13 December 2016 (‘the contested decision’), the [OSCURATO:PERSONA] of Appeal of EUIPO dismissed the appeal as inadmissible. 16 In its decision, the [OSCURATO:PERSONA] of Appeal found that the examiner’s decision to refuse the application for a trade mark was deemed to have been notified to the applicant on 28 May 2016 and that, therefore, the two-month time limit for filing an appeal expired on 28 July 2016. 17 According to the [OSCURATO:PERSONA] of Appeal, the applicant’s communication entitled ‘Notice of appeal with statement of grounds’, which had been received by EUIPO on 27 September 2016, did not contain the notice of appeal but only the statement of grounds and had been submitted outside the relevant time limit for filing the appeal. 18 [OSCURATO:PERSONA] of Appeal states that on 6 October 2016, the applicant submitted a copy of the communication entitled ‘Notice of appeal’ which was dated 26 July 2016, to which the notice of appeal was attached. However, according to the [OSCURATO:PERSONA] of Appeal, as stated in the communication itself, this was in draft status, which implied that it had not been submitted to EUIPO. 19 In addition, the [OSCURATO:PERSONA] of Appeal states that it had itself carried out a detailed investigation and found no trace of that communication of the applicant recorded by EUIPO. 20 Consequently, the [OSCURATO:PERSONA] of Appeal dismissed the appeal as inadmissible on the ground that it had not been filed by the time limit prescribed, in accordance with [OSCURATO:PERSONA] 60 of [OSCURATO:PERSONA] 207/2009 (now [OSCURATO:PERSONA] 68 of [OSCURATO:PERSONA] 2017/1001). Forms of order sought 21 The applicant claims, in essence, that the [OSCURATO:PERSONA] should annul the contested decision. 22 EUIPO contends that the [OSCURATO:PERSONA] should: –        dismiss the action; –        order the applicant to pay the costs. Law 23 First of all, EUIPO, without formally raising a plea of inadmissibility, contends that the application does not meet the requirements of [OSCURATO:PERSONA] 177(1)(e) of the Rules of Procedure of the [OSCURATO:PERSONA] in that the action does not identify clearly the form of order sought in order to enable the [OSCURATO:PERSONA] to decide the case. 24 In that regard, it must be borne in mind that under the first paragraph of [OSCURATO:PERSONA] 21 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], applicable to the procedure before the [OSCURATO:PERSONA] by virtue of the first paragraph of [OSCURATO:PERSONA] 53 of that Statute, and [OSCURATO:PERSONA] 177(1)(d) of the Rules of Procedure of the [OSCURATO:PERSONA], all applications must indicate, in particular, a brief statement of the grounds relied on. The information given must be sufficiently clear and precise to enable the defendant to prepare his defence and the [OSCURATO:PERSONA] to decide the case. The same considerations also apply to all claims, which must be accompanied by pleas and arguments enabling both the defendant and the [OSCURATO:PERSONA] to assess their validity. Thus, the essential elements of fact and of law on which the action is based must be indicated, at least in summary form, coherently and intelligibly in the application itself. Similar requirements apply where a claim or an argument is relied on in support of a plea in law (judgment of 25 January 2018, SilverTours v EUIPO (billiger-mietwagen.de) , T‑866/16, not published, EU:T:2018:32, paragraph 47). 25 In the present case, it must be found that the application itself indicates, sufficiently clearly, that the present action seeks annulment of the decision by which the [OSCURATO:PERSONA] of Appeal found that the applicant’s appeal was inadmissible. It is also apparent from the application that the applicant submits that the [OSCURATO:PERSONA] of Appeal erred in dismissing the appeal as inadmissible since the notice of appeal had been duly submitted by the time limit set. According to the applicant, the [OSCURATO:PERSONA] of Appeal therefore infringed [OSCURATO:PERSONA] 60 of [OSCURATO:PERSONA] 207/2009. 26 The action must, therefore, be declared admissible. 27 In support of its action, the applicant relies on a single plea in law, alleging infringement of [OSCURATO:PERSONA] 60 of [OSCURATO:PERSONA] 207/2009. The applicant submits, in essence, that the notice of appeal was duly filed by the time limit set. 28 It should be pointed out, first of all, as EUIPO notes, that the applicant does not dispute the [OSCURATO:PERSONA] of Appeal’s conclusion that the examiner’s decision to refuse registration of the mark applied for was deemed to have been duly notified on 28 May 2016 and that, therefore, the time limit for filing an appeal was set at 28 July 2016. In addition, the payment of the appeal fee and the submission of the statement of grounds are not in dispute in the context of the present proceedings before the [OSCURATO:PERSONA]. 29 Consequently, the dispute concerns, essentially, the compliance with the obligation to file a notice of appeal by the time limit set. 30 In that regard, it must be pointed out that, in accordance with [OSCURATO:PERSONA] 60 of [OSCURATO:PERSONA] 207/2009, ‘notice of appeal must be filed in writing at [EUIPO] within two months after the date of notification of the decision appealed from’. In addition, ‘the notice shall be deemed to have been filed only when the fee for appeal has been paid’. Lastly, ‘within four months after the date of notification of the decision, a written statement setting out the grounds of appeal must be filed’. 31 Furthermore, Rule 49(1) of [OSCURATO:PERSONA] 2868/95 provides that if the appeal does not comply with [OSCURATO:PERSONA] 60 of [OSCURATO:PERSONA] 207/2009, it must be rejected as inadmissible, unless the deficiencies have been remedied before the relevant time limit laid down in that article has expired. 32 The applicant submits that it duly submitted the notice of appeal electronically on 26 July 2016, that is to say by means of its account in the user area of EUIPO’s website. 33 However, EUIPO states that neither on the given date, nor on any other date before the time limit set, that is 28 July 2016, did it receive the notice of appeal. The first time that the [OSCURATO:PERSONA] of the Boards of Appeal received a communication from the applicant concerning the present appeal was on 27 September 2016, which contained only a statement of grounds. 34 After being informed by the [OSCURATO:PERSONA] of the Boards of Appeal that the notice of appeal had not been submitted by the time limit set, the applicant provided, on 6 October 2016, a copy of the communication entitled ‘Notice of appeal’ dated 26 July 2016 with the attached completed form of the notice of appeal. 35 However, it must be held, as correctly found by the [OSCURATO:PERSONA] of Appeal in paragraph 23 of the contested decision, that that evidence could not prove that the notice of appeal had been submitted as claimed by the applicant. Indeed, the communication relied on by the applicant was marked ‘DRAFT’, which seems to indicate that it was not submitted to EUIPO. 36 In addition, it should be noted that by letter of 15 August 2016, EUIPO informed the applicant that it had received, on 28 July 2016, a payment without being able to determine its purpose. That fact confirms that, contrary to the applicant’s claims, the communication of the notice of appeal had not reached EUIPO on 26 July 2016. 37 EUIPO contends that the notice of appeal did not reach it because, after preparing the respective communication, the applicant did not complete the whole process of submitting it to EUIPO. 38 In that regard, EUIPO contends that the process of submitting a notice of appeal electronically, as in place on 26 July 2016, required that a user be logged on in the user area of EUIPO’s website. After selecting a trade mark in respect of which an appeal had to be filed, the user would have been taken to EUIPO’s tool ‘eSearch plus’. There the user had to select the tab ‘Appeals’ and then go to the section ‘Actions and Communications’. Once in that section, the user had to create a communication entitled ‘Notice of Appeal’ or ‘Notice of Appeal with statement of grounds’ and attach to it the actual notice of appeal. After clicking on the button ‘Continue’, the communication would have appeared in ‘Draft’ status and the user would have had the possibility of saving it on his local drive in PDF format or of modifying it. In order to finalise the process the user had to click on the button ‘Complete’ and the communication would have been submitted to EUIPO. According to EUIPO, had such a communication been duly submitted, it would have appeared in the inbox of the user area from where the user would have been able to download it. 39 EUIPO’s arguments must be endorsed. 40 First, it must be pointed out that in order to assist users, the ‘frequently asked questions’ (FAQ) section guiding them through the process of filing a notice of appeal was accessible on EUIPO’s website. In addition, users had the possibility of consulting the instructions regarding the functioning of the user area at the material time. 41 Secondly, the applicant’s explanations provided in its application confirm that the communication containing the notice of appeal was created, but not submitted. Indeed, the applicant does not indicate that it performed the last step in the process for filing, namely clicking on the button ‘Complete’. Consequently, the communication remained a draft. 42 Thirdly, it should be pointed out, as EUIPO notes, that unlike the communication relating to the notice of appeal, dated 26 July 2016, the applicant’s communication containing the statement of grounds of 27 September 2016 is not marked ‘DRAFT’, which confirms that it was duly submitted. As the [OSCURATO:PERSONA] of Appeal noted in paragraphs 7 and 8 of the contested decision, that communication was indeed received by EUIPO on the given date. 43 It should also be pointed out, as the [OSCURATO:PERSONA] of Appeal notes, that even though the draft documents attached might potentially demonstrate that a notice of appeal had been prepared, they are not capable of proving that such a notice was sent to EUIPO within the prescribed period (see, to that effect, judgment of 6 December 2016, [OSCURATO:PERSONA] v EUIPO — [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) , T‑703/15, not published, EU:T:2016:707, paragraph 31). In addition, the applicant fails to explain how those draft documents can prove that such a notice of appeal was submitted on 26 July 2016. 44 Consequently, in the absence of any evidence to the contrary adduced by the applicant, it must be found that the [OSCURATO:PERSONA] of Appeal correctly concluded that the applicant had not sent the notice of appeal on 26 July 2016, and that the notice cannot be considered to have been received by the time limit set and must, therefore, be rejected as inadmissible. 45 That conclusion cannot be called in question by the document lodged by the applicant as Annex 3 to its application, entitled ‘Communication — Notice of appeal’, dated 26 July 2016, since the applicant confirmed, in response to a question from the [OSCURATO:PERSONA], that it was a copy of the document with the same heading already lodged by it before the [OSCURATO:PERSONA] of Appeal on 6 October 2016, which contained the watermark ‘DRAFT’ in the background. 46 In addition, it must be found, as EUIPO notes, that the applicant could have submitted additional evidence to prove that the notice of appeal had been submitted by the time limit set. Indeed, when a communication has been duly submitted using the user area, it should appear in the user’s inbox. The applicant could, therefore, have submitted a screenshot from its user area to show, if necessary, that the communication containing the notice of appeal had been submitted, which it has failed to do. 47 As regards the applicant’s claims that it had several telephone conversations with EUIPO concerning the electronic procedure in question and was not informed of the need to undertake further action in order to submit its appeal, it suffices to note that there is no evidence on the file in that regard. 48 Lastly, as regards the applicant’s statement that the [OSCURATO:PERSONA] of the Boards of Appeal accepted the notice of appeal by its communication of 13 October 2016, it is clear from the wording of that communication that the [OSCURATO:PERSONA] of the Boards of Appeal acknowledged receipt of the applicant’s letter dated 6 October 2016 and informed it that the case would be forwarded to the [OSCURATO:PERSONA] of Appeal for it to assess the admissibility of the appeal. Consequently, the communication of 13 October 2016 cannot be considered confirmation that the appeal was admissible. 49 In the light of all the foregoing, the action must be dismissed. Costs 50 [OSCURATO:PERSONA] 134(1) of the Rules of Procedure, 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. On those grounds, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby: 1. Dismisses the action; 2. [OSCURATO:PERSONA] to pay the costs. [OSCURATO:PERSONA][OSCURATO:PERSONA][OSCURATO:PERSONA] in open court in Luxembourg on 15 January 2019. E. Coulon H. [OSCURATO:PERSONA] * Language of the case: English.
Sentenza Corte di giustizia UE n. 207/2019 — Fons Iuris — Fons Iuris