ORDER OF THE GENERAL COURT (Seventh Chamber)
28 November 2011(*)
(Community trade mark – Period within which an action must be brought – Late submission – Manifest inadmissibility)
In Case T‑307/11,
Noscira, SA, established in Madrid (Spain), represented by A. Sirimarco, lawyer,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM),
defendant,
the other party to the proceedings before the Board of Appeal of OHIM being
Agouron Pharmaceuticals, Inc., established in San Diego, California (United States),
ACTION brought against the decision of the Second Board of Appeal of OHIM of 10 March 2011 (Case R 661/2010-2) concerning opposition proceedings between Agouron Pharmaceuticals, Inc. and Noscira, SA,
THE GENERAL COURT (Seventh Chamber),
composed of A. Dittrich, President, I. Wiszniewska-Białecka and M. Prek (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Facts and procedure
1 By decision of 10 March 2011 (‘the contested decision’), the Second Board of Appeal of OHIM annulled the Opposition Division’s decision rejecting the opposition filed by the proprietor of the Community word mark XENTRIOR. The applicant, Noscira, SA, was notified of the contested decision on 31 March 2011.
2 By application received by fax and by e-mail at the Registry of the General Court on 10 June 2011, the applicant brought the present action.
3 On 15 June 2011, a paper copy of the application, a covering letter and six uncertified copies of the application were received at the Registry of the General Court. Both the application and the covering letter were scanned copies of the originals, and thus contained the scanned signatures of the applicant’s lawyer and not his hand-written signatures. On 18 July 2011, the Registry of the General Court questioned the applicant in that regard.
4 By letter dated 31 July 2011, received at the Registry of the General Court by fax and by e-mail on 2 August 2011, the applicant informed the Registry that the original version of the application had accidentally been placed in its file and that the scanned copy had been sent to the Registry by mistake. Page 18 of the original application bearing the hand-written signature of the applicant’s lawyer was attached as an annex to the original of that letter, received at the Court Registry on 3 August 2011.
Form of order sought by the applicant
5 The applicant claims that the Court should:
– annul the contested decision;
– allow registration of the word mark ZENTYLOR in respect of the goods in question;
– order OHIM to pay the costs.
Law
6 Under Article 111 of the Rules of Procedure of the General Court, where the action is manifestly inadmissible the Court may, by reasoned order and without taking further steps in the proceedings, give a decision on the action.
7 In the present case, the Court considers that it has sufficient information from the documents in the file and has decided, pursuant to that article, to give a decision without taking further steps in the proceedings.
8 Article 65(5) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1) provides that an action against the decision of a Board of Appeal of OHIM must be brought within two months of the date of notification of that decision. Under Article 102(2) of the Rules of Procedure, the prescribed time-limits are to be extended on account of distance by a single period of 10 days.
9 According to settled case-law, that time-limit for bringing an action is a matter of public policy since it was established in order to ensure that legal positions are clear and certain and to avoid any discrimination or arbitrary treatment in the administration of justice, and the Courts of the European Union must ascertain, of their own motion, whether it has been observed (see, by analogy, Case C‑246/95 Coen [1997] ECR I‑403, paragraph 21, and Joined Cases T‑121/96 and T‑151/96 Mutual Aid Administration Services v Commission [1997] ECR II‑1355, paragraphs 38 and 39).
10 In the present case, as indicated in paragraph 1 above, the applicant was notified of the contested decision on 31 March 2011.
11 It follows from the rules for calculating the periods for taking procedural steps set out in Articles 101(1) and 102(2) of the Rules of Procedure that the period for bringing an action expired on 10 June 2011.
12 The application was received by fax and by e-mail at the Registry of the General Court on 10 June 2011, that is to say, before the expiry of the period for bringing an action.
13 However, under Article 43(6) of the Rules of Procedure, the date on which a copy of the signed original of a pleading is received at the Registry of the General Court by fax or by e-mail is deemed to be the date of lodgment, for the purposes of compliance with the time‑limits for taking steps in proceedings, only if the signed original of the pleading is lodged at that Registry no later than 10 days after receipt of that fax or e-mail.
14 In the present case, however, the versions of the application and covering letter received at the Registry of the General Court on 15 June 2011 (see paragraph 3 above) were scanned copies of the originals of those two documents to which were appended only the scanned signatures of the applicant’s lawyer. In addition, annexed to its letter of 31 July 2011 (see paragraph 4 above), the applicant communicated only page 18 of the original application bearing its lawyer’s hand-written signature.
15 It must therefore be stated that the signed original of the application was not lodged at the Registry within the 10-day period following receipt by the Registry of the copy of that application by fax and by e-mail. In those circumstances, however, in accordance with Article 43(6) of the Rules of Procedure, only the date of lodgment of the signed original of the application can be taken into consideration for the purposes of compliance with the time-limit for bringing an action (order of 28 April 2008 in Case T‑358/07 PubliCare Marketing Communications v OHIM (Publicare), not published in the ECR, paragraph 13). Accordingly, it must be concluded that the application was not lodged before the expiry of the period within which the action had to be brought.
16 In that regard, it must be borne in mind that the failure to submit the original application, signed by a duly authorised lawyer, is not among the formal irregularities that are capable of being rectified under the second paragraph of Article 21 of the Statute of the Court of Justice of the European Union and Article 44(6) of the Rules of Procedure of the General Court. That requirement must be regarded as an essential procedural rule and be applied strictly, with the result that failure to comply with it leads to the inadmissibility of the action once the periods for taking steps in the proceedings have expired (see, to that effect, Case C‑426/10 P Bell & Ross v OHIM [2011] ECR I‑0000, paragraph 42, and Case T‑223/06 P Parliament v Eistrup [2007] ECR II‑1581, paragraphs 48 and 51).
17 Moreover, the lodgment, on 3 August 2011, of the page of the original application bearing the hand-written signature of the applicant’s lawyer cannot be regarded as having rectified the failure to lodge the signed original of that application within the 10-day period following receipt, by fax and by e-mail, of the copy of that application at the Registry of the General Court (see paragraphs 4 and 14 above). That lodgment, in which, moreover, the document lodged was not the full text of the original application, took place after the period for bringing the action had expired.
18 In addition, the applicant has not proved – or even invoked – either an excusable mistake or the existence of unforeseeable circumstances or force majeure such as would permit the Court to derogate from the time‑limit in question on the basis of the second paragraph of Article 45 of the Statute of the Court of Justice, which is applicable to proceedings before the General Court pursuant to Article 53 of that Statute. Thus, in its letter of 31 July 2011 (see paragraph 4 above), the applicant states that the original version of the application had accidentally been placed in its file and that the scanned copy had been sent to the Registry of the General Court by mistake.
19 Under those circumstances, the action must be dismissed as being manifestly inadmissible, and there is no need to serve it on OHIM.
Costs
20 Since this order is being made before service of the application on OHIM and before the latter could have incurred any costs, it is sufficient to order that the applicant must bear its own costs, in accordance with Article 87(1) of the Rules of Procedure.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby orders:
1. The action is dismissed.
2. Noscira, SA shall bear its own costs.
Luxembourg, 28 November 2011.