Case T‑30/23
Fly Persia IKE
and
Ali Barmodeh
v
European Union Intellectual Property Office
Order of the General Court (Seventh Chamber, Extended Composition) of 8 February 2024
(EU trade mark – Opposition proceedings – Intervention – Article 173(1) and Article 179 of the Rules of Procedure – Response lodged out of time – Articles 142 to 145 of the Rules of Procedure – Inapplicability – Rejection)
Judicial proceedings – Intervention – One of the parties to the proceedings before EUIPO exceeding the time limit referred to in Article 179 of the Rules of Procedure of the General Court – Not possible to intervene pursuant to Article 173 of the Rules of Procedure – Consequence – Not possible to intervene on the basis of Articles 142 to 145 of the Rules of Procedure
(Statute of the Court of Justice, Arts 40, second para., and 53, first para; Rules of Procedure of the General Court, Arts 142 to 145, 173 and 179)
(see paragraphs 17-19, 21, 29-32)
Résumé
The General Court, ruling in the extended five-judge composition, has not granted Dubai Aviation Corp. – a party to the proceedings before the Board of Appeal of the European Union Intellectual Property Office (EUIPO) – leave to participate as intervener in the proceedings before the Court, after it had exceeded the time limit for lodging its response in accordance with Articles 173 and 179 of the Rules of Procedure of the General Court. Those provisions lay down specific rules in intellectual property matters concerning the intervention before the Court of a party to the proceedings before the Board of Appeal other than the applicant. (1) According to the order, the general provisions on intervention, namely Articles 142 to 145 of those rules, do not apply to such a party where it has lost the opportunity of becoming a party to the proceedings before the Court in accordance with Article 173 of those rules.
In the present case, the applicants, Fly Persia IKE and Mr Ali Barmodeh, applied to EUIPO for registration of an EU trade mark. Dubai Aviation Corp. filed a notice of opposition to that registration. The Opposition Division of EUIPO upheld the opposition in part. The appeal against that decision was dismissed by the Board of Appeal of EUIPO (‘the contested decision’).
By application lodged at the Court Registry, the applicants brought an action seeking the annulment of the contested decision. On 13 February 2023, the application was served on Dubai Aviation Corp. as a party before the Board of Appeal. On 26 April 2023, that company lodged a document entitled ‘Response’ at the Registry, thereby exceeding the time limit prescribed under Article 179 of the Rules of Procedure. (2)
Findings of the Court
In the first place, the Court points out that the status before the General Court of a party to the proceedings before the Board of Appeal other than the applicant before the General Court is governed by Article 173 of the Rules of Procedure. When such a party to the proceedings before the Board of Appeal failed to submit a response to the application within the time limit prescribed in that regard by Article 179 of the Rules of Procedure, it does not have the status of party before the Court. Beyond that time limit, that party cannot therefore submit observations in the course of the proceedings before the Court.
In the present case, Dubai Aviation Corp. did not lodge any procedural documents before the expiry of the time limit for the lodging of the response and lodged its response outside that time limit. In addition, it did not plead the existence of exceptional circumstances constituting unforeseeable circumstances or force majeure. Accordingly, Dubai Aviation Corp. did not become a party to the proceedings before the Court as an intervener in accordance with Article 173(1) and (2) of the Rules of Procedure.
In the second place, the Court examines whether Dubai Aviation Corp. is to be granted leave to intervene on the basis of Articles 142 to 145 of the Rules of Procedure, which lay down the general rules governing the submission and the examination of applications to intervene before the Court. This would allow Dubai Aviation Corp. to rely on a general time limit. (3)
However, the Court observes that those provisions, which form part of Title III of those rules relating to direct actions, apply to the proceedings referred to in Title IV concerning litigation relating to intellectual property rights, subject to the special provisions of that Title IV. Since Title IV, in Articles 173 and 179 of the Rules of Procedure, lays down specific rules concerning the intervention before the Court of a party to the proceedings before the Board of Appeal other than the applicant, Articles 142 to 145 of those rules do not apply to that party.
Accordingly, the Court finds that it cannot be accepted that, having lost the opportunity of becoming a party to the proceedings as an intervener in accordance with Article 173 of the Rules of Procedure, Dubai Aviation Corp. would be allowed to intervene pursuant to Articles 142 to 145 of those rules. It is also therefore excluded from being entitled to rely on the time limit laid down by Article 143(1) of those rules.