Case T‑523/10

Interkobo sp. z o.o.

v

Office for Harmonisation in the Internal Market
(Trade Marks and Designs) (OHIM)

(Community trade mark — Opposition proceedings — Application for Community figurative mark my baby — Earlier national and international word marks MYBABY and earlier national figurative mark mybaby — Relative ground for refusal — Failure to produce evidence in the language of the opposition proceedings — Legitimate expectations — Rules 19(3), 20(1) and 98(1) of Regulation (EC) No 2868/95)

Summary of the Judgment

Community trade mark — Observations of third parties and opposition — Examination of the opposition — Failure to produce, within the period prescribed, the translation of the certificate of registration of the earlier mark — Effect on the proceedings before the Opposition Division

(Commission Regulation No 2868/95, Art. 1, Rules 19(1) to (3) and 98(1))

When the information and evidence referred to in Rule 19(1) and (2) of Regulation No 2868/95 implementing Regulation No 40/94 on the Community trade mark are in a language other than that of the proceedings, the opposing party must file, at the stage of the opposition, within the period prescribed for the production of that information and evidence, a translation of those documents, which must meet specific requirements regarding both its form and content.

Firstly, Rule 19(3) of Regulation No 2868/95 stipulates that the information and evidence not in the language of the proceedings must be ‘accompanied’ by a translation. As regards Rule 98(1) of that regulation, it provides that the translation must ‘identify’ the document to which it refers and reproduce, inter alia, the ‘structure’ of that document. Combined, those two rules state, in particular, that the translation of any of the information or evidence referred to in Rule 19(1) and (2) of Regulation No 2868/95 must be submitted not in the form of mere annotations in the original document but of one or several separate written documents. In the event that that formal requirement is not met, the abovementioned information and evidence submitted by the opposing party cannot be taken into account in the opposition proceedings.

The purpose of that formal requirement is, firstly, to enable the other party to the opposition proceedings, as well as the bodies of the Office for Harmonisation in the Internal Market (Trade Marks and Designs), to easily differentiate the original document from its translation, and secondly, to ensure that the latter is sufficiently clear. In other words, the objective is, in particular, to enable the debate between the parties to the opposition proceedings to take place on a sound basis, in accordance with the principle of audi alteram partem and to ensure equality of arms.

Secondly, it is apparent from Rule 98(1) of Regulation No 2868/95, interpreted in the light of the considerations set out in the previous paragraph of the present judgment, that the translation, presented as set out above, in the form of a separate written document, must faithfully reproduce the contents of the original document. In case of doubt as to the faithfulness of the translation, the OHIM bodies are entitled to require from the interested party the production of a certificate attesting that the translation corresponds to the original text.

(see paras 23-26)