ORDER OF THE PRESIDENT OF THE SEVENTH CHAMBER OF THE GENERAL COURT
16 September 2013(*)
(Intervention – Response of the other party to the proceedings before OHIM – Article 43(1) of the Rules of Procedure of the General Court – Absence of a handwritten signature)
In Case T‑486/12,
Sofia Golam, residing in Athens (Greece), represented by N. Trovas, lawyer,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by P. Geroulakos, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM being
Pentafarma-Sociedade Tecnico-Medicinal, SA, established in Prior Velho (Portugal), represented by A.D.J.L. Fazenda, lawyer,
ACTION brought against the decision of the First Board of Appeal of OHIM of 19 July 2012 (Case R 1901/2011 1) relating to opposition proceedings between Pentafarma-Sociedade Tecnico-Medicinal, SA and Sofia Golam,
THE PRESIDENT OF THE SEVENTH CHAMBER OF THE GENERAL COURT
makes the following
Order
1 On 15 February 2010, the applicant, Sofia Golam, filed an application for registration of a Community trade mark at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1). The trade mark in respect of which registration was sought is the word sign METABOL. Registration was sought for goods in Classes 5, 16 and 30 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended.
2 On 14 September 2010, the other party to the proceedings before OHIM, Pentafarma-Sociedade Tecnico-Medicinal, SA, filed a notice of opposition under Article 41 of Regulation No 207/2009 against registration of the mark applied for in relation to the goods in Class 5. The opposition was based on the earlier word mark METABOL-MG, registered under Portuguese trade mark No 241 841 on 3 October 1991 for goods in Class 5 of the Nice Agreement. The ground relied on in support of the opposition was that referred to in Article 8(1)(b) of Regulation No 207/2009.
3 On 19 July 2011, the Opposition Division upheld the opposition in part.
4 On 15 September 2011, the applicant filed an appeal with OHIM pursuant to Articles 58 to 64 of Regulation No 207/2009 against the Opposition Division’s decision.
5 By decision of 19 July 2012 (‘the contested decision’), the First Board of Appeal annulled the Opposition Division’s decision in part and dismissed the appeal in part.
6 The applicant then brought an action against the contested decision by application lodged at the Court Registry on 3 November 2012.
7 Pentafarma-Sociedade Tecnico-Medicinal submitted its observations in a response lodged at the Court Registry on 19 April 2013.
8 On 29 May 2013, the Court questioned Pentafarma-Sociedade Tecnico-Medicinal about the original nature of the signature on its response.
9 On 11 June 2013, Pentafarma-Sociedade Tecnico-Medicinal’s lawyer informed the Registry that the signature affixed to the response was his and that it was created by reproducing his handwritten signature through use of a scanner. He also stated that the use of that signature was protected against third party use by a password known only to him.
10 In accordance with Article 134(1) of the Rules of Procedure of the General Court, the parties to the proceedings before the Board of Appeal other than the applicant may participate, as interveners, in the proceedings before the General Court by responding to the application in the manner and within the period prescribed.
11 As is recognised in the second paragraph of Article 53 of the Statute of the Court of Justice of the European Union, litigation in the field of intellectual property presents specific features which require derogation from certain provisions governing proceedings before the General Court. The specific provisions of Title IV of the Rules of Procedure concerning proceedings relating to intellectual property rights have been adopted in order to take account of those specific features. One such feature is the fact that such litigation involves, so far as opposition proceedings are concerned, disputes between private persons. To that end, specific rules on the procedural rights of interveners, in particular, were adopted (see, to that effect, order in Case T‑94/02 Boss v OHIM – Delta Biomichania Pagatou (BOSS) [2004] ECR II‑813, paragraph 17).
12 In the absence of any provisions in the Statute of the Court of Justice and the Rules of Procedure expressly governing certain aspects of the treatment of interventions in respect of proceedings relating to intellectual property, the procedural provisions laid down in Articles 115 and 116 of the Rules of Procedure should be applied by analogy (see order of 26 September 2011 in Case T‑143/11 Consorzio vino Chianti Classico v OHIM – FFR (Emblem with a drawing of a rooster), not published in the ECR, paragraph 19 and the case-law cited).
13 As provided in the third subparagraph of Article 116(1) of the Rules of Procedure, the President is to decide on the application to intervene by order or is to refer the decision to the General Court. The order must be reasoned if the application is dismissed.
14 Pursuant to Article 135(1) of the Rules of Procedure, OHIM and the parties to the proceedings before the Board of Appeal other than the applicant are to lodge their responses to the application within a period of two months from the service of the application.
15 It follows from the wording of the first subparagraph of Article 43(1) of the Rules of Procedure that the original of every pleading must be signed by the party’s agent or lawyer. It has also been held that the handwritten signature of the lawyer or agent representing a party, on the original of every procedural document, constitutes the sole means of ensuring that responsibility for such a document is assumed by a person entitled to represent the party before the Community Courts, in accordance with Article 19 of the Statute of the Court of Justice (Case T‑123/04 Cargo Partner v OHIM (CARGO PARTNER) [2005] ECR II‑3979, paragraph 19).
16 On that basis, the Court has held on numerous occasions that the absence of a handwritten signature on the application by a lawyer entitled to represent the applicant before the Court, or signature merely by way of a stamp reproducing the lawyer’s signature, leads to the inadmissibility of the application, and consequently, of the action (order in Case T‑37/98 FTA and Others v Council [2000] ECR II‑373, and Case T‑223/06 P Parliament v Eistrup [2007] ECR II‑1581).
17 Since Article 43(1) of the Rules of Procedure refers to ‘every pleading’, the inevitable conclusion is that the absence of a handwritten signature on the response of the other party to the proceedings before OHIM must, likewise, lead to its inadmissibility.
18 In the present case, Pentafarma-Sociedade Tecnico-Medicinal’s lawyer admitted, in his written reply to the question put to him by the Court, that the signature on the original response was a scan of his signature and not a handwritten one.
19 Therefore, it must be concluded that the response submitted by Pentafarma-Sociedade Tecnico-Medicinal does not satisfy the requirements arising from the fourth paragraph of Article 19 of the Statute of the Court of Justice and Article 43(1) of the Rules of Procedure.
20 That conclusion is not affected by the intervener’s argument based on Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures (OJ 2000 L 13, p. 12).
21 First of all, the Court notes that, in any event, a scanned copy of a handwritten signature is not the same as an electronic signature, such as defined in Article 2(1) of Directive 1999/93/EC, according to which ‘electronic signature’ means data in electronic form which are attached to or logically associated with other electronic data and which serve as a method of authentication.
22 Furthermore, it should be noted that it is open to the parties’ representatives to lodge their pleadings electronically at the Court Registry using the secure e-Curia application, which ensures that responsibility for a document lodged electronically is assumed by a person authorised to represent the party before the Community Courts, in accordance with Article 19 of the Statute of the Court of Justice.
23 It follows from all of the foregoing that Pentafarma-Sociedade Tecnico-Medicinal did not submit a response in accordance with the first subparagraph of Article 43(1) of the Rules of Procedure within the two-month period prescribed by Article 135(1) of those rules. Pentafarma-Sociedade Tecnico-Medicinal cannot, therefore, be permitted to participate as intervener in the proceedings in this case pursuant to Article 134(1) of the Rules of Procedure.
24 Under Article 87(1) of the Rules of Procedure, a decision as to costs is to be given in the final judgment or in the order which closes the proceedings. Since the present order closes the proceedings so far as concerns Pentafarma-Sociedade Tecnico-Medicinal, the Court must make an order in respect of the costs associated with the application to intervene.
25 As the present order has been adopted before the parties could have incurred costs associated with Pentafarma-Sociedade Tecnico-Medicinal’s application to intervene, it is sufficient to decide that Pentafarma-Sociedade Tecnico-Medicinal must bear its own costs.
On those grounds,
THE PRESIDENT OF THE SEVENTH CHAMBER OF THE GENERAL COURT
hereby orders:
1. Pentafarma-Sociedade Tecnico-Medicinal, SA is not permitted to participate as intervener in the proceedings pursuant to Article 134(1) of the Rules of Procedure of the Court.
2. Pentafarma-Sociedade Tecnico-Medicinal shall bear its own costs.
Luxembourg, 16 September 2013.