Corte di giustizia UE n. 207/2018

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 22 November 2018 ( * ) (EU trade mark — [OSCURATO:PERSONA] proceedings — Figurative mark RoB — Declaration of invalidity — [OSCURATO:PERSONA] 60(1) of [OSCURATO:PERSONA] (EC) No 207/2009 (now [OSCURATO:PERSONA] 68(1) of [OSCURATO:PERSONA] (EU) 2017/1001) — [OSCURATO:PERSONA] 75 of [OSCURATO:PERSONA] 207/2009 (now [OSCURATO:PERSONA] 94 of [OSCURATO:PERSONA] 2017/1001) — Rule 49(3) of [OSCURATO:PERSONA] (EC) No 2868/95 (now [OSCURATO:PERSONA] 23(3) of [OSCURATO:PERSONA] (EU) 2018/625) — Rule 62(3) of [OSCURATO:PERSONA] 2868/95 (now [OSCURATO:PERSONA] 58(3) of [OSCURATO:PERSONA] 2018/625) — Action manifestly lacking any foundation in law) [OSCURATO:PERSONA] T‑355/17, [OSCURATO:PERSONA] BV, established in Amsterdam (Netherlands), represented by M. Kassner, lawyer, applicant, v [OSCURATO:PERSONA] (EUIPO), represented by A. Söder, acting as Agent, defendant, the other party to the proceedings before the [OSCURATO:PERSONA] of Appeal of EUIPO being [OSCURATO:PERSONA], established in London ([OSCURATO:PERSONA]), ACTION brought against the decision of the [OSCURATO:PERSONA] of Appeal of EUIPO of 9 March 2017 ([OSCURATO:PERSONA] R 1405/2016‑2), relating to cancellation proceedings between [OSCURATO:PERSONA] and [OSCURATO:PERSONA], [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of V. Tomljenović, [OSCURATO:PERSONA], A. Marcoulli (Rapporteur) and A. Kornezov, Judges, [OSCURATO:PERSONA]: E. Coulon, having regard to the application lodged at the [OSCURATO:PERSONA] on 2 June 2017, having regard to the response lodged at the [OSCURATO:PERSONA] on 6 October 2017, makes the following [OSCURATO:PERSONA] to the dispute 1 On 30 August 2006, the applicant, [OSCURATO:PERSONA] BV, filed an application for registration of an EU trade mark with the [OSCURATO:PERSONA] (EUIPO) pursuant to [OSCURATO:PERSONA] (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by [OSCURATO:PERSONA] (EC) No 207/2009 of 26 February 2009 on the [OSCURATO:PERSONA] trade mark (OJ 2009 L 78, p. 1), as amended, itself 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 (‘the contested mark’): 3 The goods and services in respect of which registration was sought are in Classes 3, 10, 18, 25, 28, 35, 40, 41 and 43 of the [OSCURATO:PERSONA] concerning the [OSCURATO:PERSONA] of Goods and [OSCURATO:PERSONA] for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended. 4 The contested mark was registered on 29 August 2007. 5 On 11 August 2015, [OSCURATO:PERSONA] filed an application for revocation in respect of the contested mark, pursuant to [OSCURATO:PERSONA] 51(1)(a) of [OSCURATO:PERSONA] 207/2009 (now [OSCURATO:PERSONA] 58(1)(a) of [OSCURATO:PERSONA] 2017/1001), on the ground that that mark had not been put to genuine use for a continuous period of five years. That application was directed against all the goods and services covered by the contested mark. 6 On 31 August 2015, EUIPO fixed a period of three months for the applicant to submit evidence of genuine use of the contested mark. 7 On 2 March 2016, as no evidence of use had been filed within the period set, the [OSCURATO:PERSONA] upheld the revocation of the contested mark in its entirety (‘the decision of 2 March 2016’). 8 The decision of 2 March 2016 was sent to the applicant on 3 March 2016 by registered letter with acknowledgement of receipt. That letter was apparently notified on 9 March 2016. 9 On 27 June 2016, EUIPO informed the applicant that the decision of 2 March 2016 had become final and that as a result the contested mark had been revoked. 10 On 31 July 2016, the applicant filed an appeal with EUIPO, pursuant to Articles 58 to 64 of [OSCURATO:PERSONA] 207/2009 (now Articles 66 to 71 of [OSCURATO:PERSONA] 2017/1001), against the decision of 2 March 2016. 11 Also on 31 July 2016, the applicant filed an application for restitutio in integrum pursuant to [OSCURATO:PERSONA] 81 of [OSCURATO:PERSONA] 207/2009 (now [OSCURATO:PERSONA] 104 of [OSCURATO:PERSONA] 2017/1001). The applicant submitted, in essence, that it had not received notification from EUIPO concerning the revocation proceedings. 12 On 2 August 2016, the [OSCURATO:PERSONA] of Appeal informed the parties that the appeal before it was suspended pending a decision of the [OSCURATO:PERSONA] on the application for restitutio in integrum . 13 On 30 August 2016, the [OSCURATO:PERSONA] rejected the application for restitutio in integrum . It noted that the applicant had not based its application on the fact that it had acted with all the due care required by the circumstances but on the fact that EUIPO had not correctly notified it of the information concerning the revocation proceedings. [OSCURATO:PERSONA] therefore considered that the application submitted by the applicant in fact relied on an obvious procedural error attributable to EUIPO under [OSCURATO:PERSONA] 80(1) and (2) of [OSCURATO:PERSONA] 207/2009 (now [OSCURATO:PERSONA] 103(1) and (2) of [OSCURATO:PERSONA] 2017/1001). Consequently, it rejected the application for restitutio in integrum . As regards the obvious procedural error attributable to EUIPO, the [OSCURATO:PERSONA] noted that the letter of 31 August 2015, fixing a three-month period for the applicant to produce evidence of genuine use of the contested mark, had been sent by post, without it being possible to determine whether that letter was in fact sent by ordinary post or by registered post or whether it had been delivered to its addressee. Accordingly, the [OSCURATO:PERSONA] indicated its intention to revoke the decision of 2 March 2016. However, since the decision of 2 March 2016 was the subject of an appeal, the [OSCURATO:PERSONA] stated that the proceedings for the revocation of that decision could take place only after the adoption of a decision by the [OSCURATO:PERSONA] of Appeal. 14 By decision of 9 March 2017 (‘the contested decision’), the [OSCURATO:PERSONA] of Appeal of EUIPO held that the appeal had not been filed. It noted that the decision of 2 March 2016 had been delivered to the applicant’s address on 9 March 2016. Moreover, the registered letter sent by EUIPO included the applicant’s name. [OSCURATO:PERSONA] of Appeal concluded from this that the notification effected by EUIPO fulfilled the conditions of actual knowledge by the addressee of that notification concerning external aspects of the notification. The question of whether or not the director of the applicant company was aware of the notification concerns the internal aspect of the notification and is not covered by the assessment of its validity. Taking account of the actual notification of the decision of 2 March 2016 within 10 days of the date of its posting, namely, on 3 March 2016, the [OSCURATO:PERSONA] of Appeal held that the prescribed periods for lodging the appeal and paying the appeal fee had expired on 13 May 2016, in accordance with Rule 62(3) of [OSCURATO:PERSONA] (EC) No 2868/95 of 13 December 1995 implementing [OSCURATO:PERSONA] 40/94 (OJ 1995 L 303, p. 1) (now [OSCURATO:PERSONA] 58(3) 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)). [OSCURATO:PERSONA] of Appeal also noted that the appeal fee and the surcharge had been paid on 11 July 2016, and that the notice of appeal was not lodged until 31 July 2016. Therefore, the [OSCURATO:PERSONA] of Appeal found that the appeal had to be deemed not to have been filed, pursuant to [OSCURATO:PERSONA] 60(1) of [OSCURATO:PERSONA] 207/2009 (now [OSCURATO:PERSONA] 68(1) of [OSCURATO:PERSONA] 2017/1001) and Rule 49(3) of [OSCURATO:PERSONA] 2868/95 (now [OSCURATO:PERSONA] 23(3) of [OSCURATO:PERSONA] 2018/625), and ordered the reimbursement of the appeal fee and the surcharge paid by the applicant. [OSCURATO:PERSONA] of Appeal added that the fact that the appeal was deemed not to have been filed meant that there were no ‘appeal proceedings’ within the meaning of [OSCURATO:PERSONA] 85(1) of [OSCURATO:PERSONA] 207/2009 (now [OSCURATO:PERSONA] 109(1) of [OSCURATO:PERSONA] 2017/1001). Forms of order sought 15 The applicant claims that the [OSCURATO:PERSONA] should: –        annul the contested decision; –        order EUIPO to pay the costs. 16 EUIPO contends that the [OSCURATO:PERSONA] should: –        dismiss the action; –        order the applicant to pay the costs. Law 17 [OSCURATO:PERSONA] 126 of the Rules of Procedure of the [OSCURATO:PERSONA], where an action is manifestly inadmissible or manifestly lacking any foundation in law, the [OSCURATO:PERSONA] may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings. 18 In the present case, the [OSCURATO:PERSONA] considers that it has sufficient information from the documents before it and decides, pursuant to that article, to give its decision without taking further steps in the proceedings, even if one of the parties may have requested a hearing (see, to that effect, order of 23 November 2015, [OSCURATO:PERSONA] v OHIM — [OSCURATO:PERSONA] (FoodSafe) , T‑766/14, not published, EU:T:2015:913, paragraph 10). 19 The applicant submits that the [OSCURATO:PERSONA] of Appeal, in holding that the appeal had not been brought, infringed its right to be heard, as follows from [OSCURATO:PERSONA] 75 of [OSCURATO:PERSONA] 207/2009 (now [OSCURATO:PERSONA] 94 of [OSCURATO:PERSONA] 2017/1001). [OSCURATO:PERSONA] of Appeal, it argues, erred in stating that it was established, in accordance with Rule 62(3) of [OSCURATO:PERSONA] 2868/95, that the decision of 2 March 2016 had been received by the applicant. The applicant refers, in this regard, to the judgment of 25 October 2012, [OSCURATO:PERSONA] v OHIM — [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) (T‑191/11, not published, EU:T:2012:577, paragraph 34), in which, it claims, it was held that the existence of evidence of reasonable doubt as to the correct reception by the addressee of the consignment in question is sufficient proof that it did not receive the document. That judgment is, moreover, referred to in the directives relating to procedures published by EUIPO (Part A, section 1, point 3.2.2). In the present case, the applicant can clearly prove that it did not receive the decision of 2 March 2016, as the letter in question was received by Mr or Ms A., whom the applicant does not know. There is, therefore, a reasonable doubt as to whether the decision of 2 March 2016 was indeed received. Furthermore, the reference made by the [OSCURATO:PERSONA] of Appeal to the order of 22 January 2015, GEA [OSCURATO:PERSONA] v OHIM (engineering for a better world) (T‑488/13, EU:T:2015:64), is incorrect, since that case concerned the receipt of a fax. By contrast, the judgment of 15 September 1998, [OSCURATO:PERSONA] and Others v [OSCURATO:PERSONA] (T‑374/94, T‑375/94, T‑384/94 and T‑388/94, EU:T:1998:198), is relevant in so far as it was found in that case that a letter, received by an employee not authorised to do so, was not properly notified. This, it is submitted, also applies a fortiori in regard to a person who is unknown to the applicant. 20 EUIPO disputes the applicant’s arguments. 21 First, concerning the alleged infringement of [OSCURATO:PERSONA] 75 of [OSCURATO:PERSONA] 207/2009, it must be recalled that that provision, in its second sentence, enshrines, in the context of EU trade mark law, the general principle of the protection of the rights of the defence under which a person whose interests are appreciably affected by a decision taken by a public authority must be given the opportunity to make his point of view known (see judgment of 4 May 2017, [OSCURATO:PERSONA] v EUIPO — Cosmowell (GELENKGOLD) , T‑25/16, not published, EU:T:2017:303, paragraph 54 and the case-law cited). 22 In the present case, the applicant refers specifically to the alleged fact that the [OSCURATO:PERSONA] of Appeal infringed [OSCURATO:PERSONA] 75 of [OSCURATO:PERSONA] 207/2009 ‘by deeming [its] appeal ... not to have been filed’. The applicant thus refers to the proceedings before the [OSCURATO:PERSONA] of Appeal. 23 It is, however, common ground that the applicant was given an opportunity effectively to make known its views before the [OSCURATO:PERSONA] of Appeal. In particular, as noted by EUIPO in its pleadings, the applicant was able to present observations on three occasions before the [OSCURATO:PERSONA] of Appeal. Furthermore, the applicant does not claim that the [OSCURATO:PERSONA] of Appeal based its decision on matters which were not brought to its attention. 24 It is therefore necessary to reject, as being manifestly unfounded, the plea raised by the applicant alleging infringement of [OSCURATO:PERSONA] 75 of [OSCURATO:PERSONA] 207/2009. 25 Secondly, it must be noted that the applicant also relies, in the application, on infringement of Rule 62(3) of [OSCURATO:PERSONA] 2868/95. 26 It should be recalled that Rule 61 of [OSCURATO:PERSONA] 2868/95 (now [OSCURATO:PERSONA] 56 of [OSCURATO:PERSONA] 2018/625), which lays down ‘[OSCURATO:PERSONA] provisions on notifications’, contains an exhaustive list of the means by which EUIPO is to notify, inter alia, its decisions. Thus, paragraph 2 of that rule states that notifications are to be made by post, by hand delivery, by deposit in a post box at EUIPO, by telecopier or other technical means, or by public notification. 27 Rule 62(3) of [OSCURATO:PERSONA] 2868/95 provides as follows: ‘Where notification is effected by registered letter, whether or not with advice of delivery, this shall be deemed to be delivered to the addressee on the 10th day following that of its posting, unless the letter has failed to reach the addressee or has reached him at a later date. In the event of any dispute, it shall be for [EUIPO] to establish that the letter has reached its destination or to establish the date on which it was delivered to the addressee, as the case may be.’ 28 In view of the arguments put forward in the application, it must be held that, by pleading the infringement of Rule 62(3) of [OSCURATO:PERSONA] 2868/95, the applicant disputes the evidence adduced by EUIPO for the purpose of showing that the decision of 2 March 2016 reached its destination, thus causing time to start to run in respect of the period for bringing proceedings. 29 In that regard, a distinction must be drawn between, first, the transmission of a document to its addressee, which is required for due notification, and, secondly, effective knowledge of that document, which is not required in order for the notification to be regarded as due notification. According to the case-law, the existence of a valid notification to the addressee is in no way conditional on its having been actually brought to the notice of the person competent to deal with it under the internal rules of the entity addressed, as due notification of a decision is effected once it has been communicated to the addressee and the addressee is in a position to take cognisance of it. Thus, in order to assess the validity of a notification, only its external aspect is taken into consideration, that is to say, due transmission to the addressee, and not its internal aspect, which concerns the internal functioning of the entity addressed (see order of 22 January 2015, engineering for a better world , T‑488/13, EU:T:2015:64, paragraph 19 and the case-law cited; judgment of 4 May 2017, Kasztantowicz v EUIPO — [OSCURATO:PERSONA] (GEOTEK) , T‑97/16, not published, EU:T:2017:298, paragraph 39). 30 In that context, the notifier must establish that it has created the conditions for the document to be notified to arrive within the sphere of influence of the addressee. By contrast, the notifier is not required to establish that the document was actually brought to the attention of the addressee. The notifier is thus neither obliged nor, indeed, as a general rule, able to interfere in the internal functioning of the addressee in order to ensure such cognisance. In particular, the notifier cannot be held responsible for the fact that, because of a possible lack of diligence on the part of the addressee, the latter did not take cognisance of a document which duly reached its sphere of influence (see, to that effect, judgment of 4 May 2017, GEOTEK , T‑97/16, not published, EU:T:2017:298, paragraph 41 and the case-law cited). 31 In the present case, it should be noted, first of all, that the decision of 2 March 2016 was sent by registered letter with acknowledgement of receipt. Furthermore, as is apparent from the document from the Spanish postal service, reproduced in paragraph 6 of the contested decision, the addressee of that letter was the applicant, namely, ‘[OSCURATO:PERSONA] B.V.’. 32 Next, as shown by the document from the Dutch postal service, reproduced in paragraph 18 of the contested decision, the Dutch address of the addressee was the address that the applicant had stated at that time to EUIPO, namely, ‘Kloveniersburgwal 41, Amsterdam 1011 JW’. That document bears the same postal reference number as that from the Spanish postal service. It should also be noted that the applicant states in the application that it declared a change of address to EUIPO on 24 March 2016, that is, after the decision of 2 March 2016 had been sent. Assuming that the applicant had, in fact, changed address before the decision of 2 March 2016 was sent, EUIPO did not, at that time, have the applicant’s new address. 33 Lastly, as is clear from the document from the Spanish postal service, reproduced in paragraph 7 of the contested decision, the letter in question was delivered on 9 March 2016, which is also evidenced by the document issued by the Dutch postal service referred to above. 34 It follows from those details that EUIPO created the conditions for the document to be notified to reach the addressee’s sphere of influence, within the meaning of the case-law referred to in paragraph 30 above. 35 The fact that the acknowledgement of receipt was allegedly signed by a person unknown to the applicant cannot alter that conclusion. It should be recalled that the existence of a valid notification to the addressee is in no way conditional on its having been actually brought to the notice of the person competent to deal with it under the internal rules of the entity addressed. Furthermore, the notification of a measure to a company’s registered office meets in all cases the requirement of legal certainty and, moreover, places that company in a position to take cognisance of the measure notified. Consequently, companies have no right to require the notification of a measure to a particular person (judgment of 26 November 1985, Cockerill-Sambre v [OSCURATO:PERSONA] , 42/85, EU:C:1985:471, paragraph 11, and order of 20 November 2012, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , T‑120/12, not published, EU:T:2012:610, paragraph 38). 36 Moreover, nothing has been put forward to suggest, as in the case giving rise to the judgment of 15 September 1998, [OSCURATO:PERSONA] and Others v [OSCURATO:PERSONA] (T‑374/94, T‑375/94, T‑384/94 and T‑388/94, EU:T:1998:198), and assuming that the national regulatory framework can be transposed, that valid instructions were left by the applicant to the Dutch postal service, which were not complied with. As regards the reference made by the applicant to the judgment of 25 October 2012, [OSCURATO:PERSONA] (T‑191/11, not published, EU:T:2012:577), suffice it to note that that case before the [OSCURATO:PERSONA] of Appeal and before the [OSCURATO:PERSONA] concerned the receipt of a consignment sent by ordinary mail. In the present case, the subject matter of the contested decision before the [OSCURATO:PERSONA] is different and concerns the receipt of the decision of 2 March 2016, sent by registered letter with acknowledgement of receipt. 37 In addition, it should be noted that, as is apparent from the statement of the owner of an administrative services company, the applicant has no salaried employees. It was thus very specifically for the applicant to ensure the conditions for the receipt of any post which might be sent to it, inter alia by registered post. No evidence has been put forward to support the view that any such precautions were taken. It should also be pointed out that the applicant stated during the administrative procedure that several letters sent by EUIPO had not been received. 38 It follows that the [OSCURATO:PERSONA] of Appeal did not err in finding that the letter notifying the decision of 2 March 2016 was delivered to the applicant within 10 days of its dispatch and that, consequently, the appeal fee and the surcharge were paid after the expiry of the period for bringing an appeal. 39 It is therefore necessary to reject, as being manifestly unfounded, the plea raised by the applicant alleging infringement of Rule 62(3) of [OSCURATO:PERSONA] 2868/95. 40 In the light of the foregoing, the pleas put forward by the applicant and, therefore, the action in its entirety must be dismissed as manifestly lacking any foundation in law. 41 It should be noted that the dismissal of the present action is without prejudice to the [OSCURATO:PERSONA] intention to revoke the decision of 2 March 2016, as expressly stated in the decision of 30 August 2016 on the application for restitutio in integrum (paragraph 13 above). Costs 42 [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 orders: 1. The action is dismissed. 2. [OSCURATO:PERSONA] BV shall pay the costs. Luxembourg, 22 November 2018. E. Coulon V. Tomljenović [OSCURATO:PERSONA] * Language of the case: English.