ORDER OF THE GENERAL COURT (Seventh Chamber, Extended Composition)
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)
In Case T‑30/23,
Fly Persia IKE, established in Athens (Greece),
Ali Barmodeh, residing in Athens,
represented by R. Marano, lawyer,
applicants,
v
European Union Intellectual Property Office (EUIPO), represented by R. Raponi, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
Dubai Aviation Corp., established in Dubai (United Arab Emirates),
THE GENERAL COURT (Seventh Chamber, Extended Composition),
composed of K. Kowalik-Bańczyk, President, E. Buttigieg, G. Hesse, I. Dimitrakopoulos and B. Ricziová (Rapporteur), Judges,
Registrar: V. Di Bucci,
makes the following
Order
Facts and procedure
1 By their action under Article 263 TFEU, the applicants, Fly Persia IKE and Mr Ali Barmodeh, seek the annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 24 November 2022 (case R 1723/2021-4) (‘the contested decision’).
2 On 13 February 2019, the applicants filed an application for registration of an EU trade mark with EUIPO in respect of the figurative mark:
3 The mark applied for covered several services in, inter alia, Class 39 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.
4 On 4 June 2019, Dubai Aviation Corp. filed a notice of opposition to registration of the mark applied for in respect of the services in Class 39.
5 The opposition was based on the earlier EU mark reproduced below, which also covered several services in Class 39:
6 The grounds relied on in support of the opposition were those set out in Article 8(1)(b) and (5) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).
7 On 13 August 2021, the Opposition Division upheld the opposition in part.
8 On 6 October 2021, the applicants filed a notice of appeal with EUIPO against the decision of the Opposition Division.
9 By the contested decision, the Board of Appeal dismissed the appeal.
10 By application lodged at the Registry of the General Court on 30 January 2023, the applicants brought the present 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 by a letter from the Registrar of the General Court.
11 On 26 April 2023, Dubai Aviation Corp. lodged a document entitled ‘Response’ at the Court Registry.
12 By a measure of organisation of procedure of 24 May 2023, the General Court requested Dubai Aviation Corp. to submit observations on the reasons for lodging the document entitled ‘Response’ after the expiry of the time limit provided for in Article 179 of the Rules of Procedure of the General Court. Dubai Aviation Corp. responded within the time limit set.
13 On 14 June 2023, the Court requested the applicants and EUIPO to submit their observations on the document entitled ‘Response’ from Dubai Aviation Corp., since it could be classified as an application for leave to intervene.
14 By letter of 30 June 2023, the applicants requested that the Court reject the application to intervene by Dubai Aviation Corp.
15 By letter of 6 July 2023, EUIPO stated that it did not object to the intervention of Dubai Aviation Corp. to the extent that it supported EUIPO’s form of order sought by it in its response.
Law
16 According to the second and fourth paragraphs of Article 40 of the Statute of the Court of Justice of the European Union, which are applicable to proceedings before the General Court pursuant to the first paragraph of Article 53 of that statute, any person which can establish an interest in the result of a case, other than a dispute between Member States, between institutions of the European Union or between Member States and institutions of the European Union, may intervene in that case. An application to intervene is to be limited to supporting the form of order sought by one of the parties.
17 In addition, it is apparent from the second paragraph of Article 53 of that statute that the Rules of Procedure may derogate from the fourth paragraph of Article 40 and Article 41 of the Statute in order to take account of the specific features of litigation in the field of intellectual property. To that end, specific rules on interveners, in particular, were adopted (see, to that effect, orders of 18 March 2016, Sociedad agraria de transformación n o 9982 Montecitrus v OHIM – Spanish Oranges (MOUNTAIN CITRUS SPAIN), T‑495/15, not published, EU:T:2016:179, paragraph 8 and the case-law cited, and of 7 December 2016, Claranet Europe v EUIPO – Claro (claranet), T‑129/16, not published, EU:T:2016:728, paragraph 8).
18 The status before the General Court of a party to the proceedings before the Board of Appeal of EUIPO other than the applicant before the General Court is thus governed by Article 173 of the Rules of Procedure (order of 12 July 2022, Cipla Europe v EUIPO and Glaxo Group, C‑245/22 P(I), not published, EU:C:2022:549, paragraph 59). More specifically, paragraph 3 of that article confers, on the parties to the proceedings before the Board of Appeal other than the applicant, the same procedural rights as on the main parties. That provision thus derogates, pursuant to the second paragraph of Article 53 of the Statute of the Court of Justice of the European Union, from the fourth paragraph of Article 40 of that statute, according to which the claims in the application to intervene must be limited to supporting the form of order sought by one of the main parties. Interveners pursuant to Article 173 of the Rules of Procedure may not only support the form of order sought by a main party, but also apply for a form of order and put forward pleas in law independent of those of the main parties (see, to that effect, order of 5 March 2004, Boss v OHIM – Delta Biomichania Pagatou (BOSS), T‑94/02, EU:T:2004:68, paragraph 17).
19 Furthermore, it must be borne in mind that, pursuant to Article 173(1) and (2) of the Rules of Procedure, a party to the proceedings before the Board of Appeal other than the applicant may participate, as intervener, in the proceedings before the General Court by responding to the application in the manner and within the time limit prescribed. Before the expiry of the time limit prescribed for the lodging of a response, that party becomes a party to the proceedings before the General Court, as intervener, on lodging a procedural document. That party loses the status of intervener before the General Court if it fails to respond to the application in the manner and within the time limit prescribed.
20 According to Article 179 of the Rules of the Procedure, the parties to the proceedings before the Board of Appeal other than the applicant are to submit their responses to the application within a time limit of two months from the service of the application.
21 It follows that a party to the proceedings before the Board of Appeal of EUIPO other than the applicant before the General Court who did not submit a response to the application within the time limit laid down in that regard by Article 179 of the Rules of Procedure, is not a party to the proceedings before the General Court and, beyond that time limit, cannot therefore submit observations in the course of the proceedings before it (see, to that effect, order of 12 July 2022, Cipla Europe v EUIPO and Glaxo Group, C‑245/22 P(I), not published, EU:C:2022:549, paragraph 61).
22 In the present case, since the application was served on Dubai Aviation Corp. on 13 February 2023, the time limit for submitting the response to the application, referred to in Article 173(1) of the Rules of Procedure, expired, in accordance with Article 179 of those rules, read in conjunction with Article 60 of those rules, on 24 April 2023 in the absence of any reasoned request for an extension.
23 The fact remains that, by lodging its response at the Court Registry on 26 April 2023, Dubai Aviation Corp. failed to comply with the time limit prescribed for responding to the application. In order to justify lodging the response late, it explained in its reply to the measure of organisation of procedure of 24 May 2023 that it had relied, in essence, on the ‘general’ rules concerning intervention provided for in Article 143 of the Rules of Procedure, according to which it had acted within the time limit. In particular, it admits that it was mistaken as regards the applicable rules and time limit, having lodged its response within the time limit laid down in that provision. Nevertheless, it requests the Court to ‘admit its application to intervene’.
24 According to the applicants, the application to intervene must be rejected as being ‘inadmissible’. They contend that, in so far as Dubai Aviation Corp. failed to comply with the time limit for lodging its response and to establish exceptional circumstances permitting derogation from the procedural rules, it has ‘lost’ its status of intervener before the General Court in accordance with Article 173(2) of the Rules of Procedure. They take the view that, even if the document entitled ‘Response’ were to be classified as an application to intervene under Article 143 of the Rules of Procedure, such an application would be inadmissible, since the fact that Dubai Aviation Corp. was a party to the proceedings before EUIPO would not be sufficient to justify a right to intervene under that article.
25 EUIPO raises no objections to the application to intervene since Dubai Aviation Corp. supports the form of order set out in its response. It notes that the existence and failure to make effective use of the specific intervention rights provided for in Article 173 of the Rules of Procedure do not, as a matter of principle, preclude a party to the proceedings before the Board of Appeal other than the applicant from applying for leave to intervene in accordance with Article 40 of the Statute of the Court of Justice of the European Union and Articles 142 to 145 of those rules, provided that the conditions laid down for that purpose are met. In its view, the document entitled ‘Response’ contains ‘explicit indications’ as to the requirements set out in Article 143(2)(a) to (d) of the Rules of Procedure, and also implicit indications as to the requirements set out in Article 143(2)(e) and (f). In addition, it submits that the application for leave to intervene also establishes Dubai Aviation Corp.’s interest in the result of the present case, in accordance with the second paragraph of Article 40 of the Statute.
26 In the first place, it must be noted that Dubai Aviation Corp. did not lodge any procedural documents before the expiry of the time limit laid down in Article 173(1) of the Rules of Procedure, read in conjunction with Articles 60 and 179 of those rules, for the lodging of the response, and lodged its response outside that time limit. In addition, in its reply to the question put by the General Court, Dubai Aviation Corp. does not plead or, a fortiori, establish the existence of exceptional circumstances constituting unforeseeable circumstances or force majeure within the meaning of the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union.
27 Accordingly, Dubai Aviation Corp. did not become a party to the proceedings before the General Court as an intervener in accordance with Article 173(1) and (2) of the Rules of Procedure.
28 In the second place, the Court must examine whether Dubai Aviation Corp. is to be granted leave to intervene on the basis of Articles 142 to 145 of the Rules of Procedure.
29 In that respect, it should be borne in mind that Articles 142 to 145 of the Rules of Procedure lay down the rules governing the submission of applications to intervene before the General Court and the examination of such applications. According to Article 143(1) of those rules, an application to intervene must be submitted within six weeks of the publication of the notice in the Official Journal of the European Union on the related application to initiate proceedings. Those provisions form part of Title III relating to direct actions.
30 In addition, in accordance with Article 191 of the Rules of Procedure, subject to the special provisions of Title IV of those rules concerning proceedings relating to intellectual property rights, the provisions of Title III apply to the proceedings referred to in Title IV. In other words, if Title IV of the Rules of Procedure concerning proceedings relating to intellectual property rights lays down specific procedural rules, the general provisions of Title III do not apply. That provision is therefore an expression of the principle lex specialis derogat legi generali.
31 It follows that, in so far as Title IV of the Rules of Procedure lays down specific rules concerning the intervention before the General 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.
32 Accordingly, it cannot be accepted that, having lost the opportunity of becoming a party to the proceedings before the General Court as an intervener in accordance with the provisions of Article 173 of the Rules of Procedure, Dubai Aviation Corp. would be allowed to intervene pursuant to the provisions of Articles 142 to 145 of the Rules of Procedure and thus be entitled to rely on the time limit laid down by Article 143(1) of those rules.
33 That finding is supported by the statement of reasons which accompanied the draft amendments to the Rules of Procedure of 22 September 1994 aimed at adapting those rules to the specific features of the newly introduced trade mark litigation. In that statement, the General Court specified that the parties to the proceedings before the Board of Appeal were subject to a ‘special regime’, which differed from the intervention regime provided for in the general provisions, to which the Member States, the institutions and other third parties with an interest in the result of the case were subject.
34 In view of the foregoing, it must be concluded that Articles 142 to 145 of the Rules of Procedure do not apply in the present case and that, having regard to Article 173(1) and (2) of those rules, Dubai Aviation Corp. did not become a party to the proceedings in the present case.
Costs
35 First, it follows from Article 173(2) of the Rules of Procedure that a party to the proceedings before the Board of Appeal other than the applicant is to bear its own costs when it does not respond to the application in the manner and within the time limit prescribed. In the present case, since Dubai Aviation Corp. did not respond to the application in the proper manner and within the time limit prescribed, it is to bear its own costs in relation to the procedural documents lodged by it.
36 Secondly, under Article 134(1) of the Rules of Procedure, which applies in the present case pursuant to Article 191 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
37 In the present case, first, since Dubai Aviation Corp. has been unsuccessful, it must be ordered, in addition to bearing its own costs, to pay those of the applicants relating to the intervention proceedings, in accordance with the form of order sought by them.
38 Secondly, in the absence of any submissions from EUIPO that Dubai Aviation Corp. should be ordered to pay the costs, it must be ordered to bear its own costs relating to the intervention proceedings.
On those grounds,
THE GENERAL COURT (Seventh Chamber, Extended Composition)
hereby orders:
1. Dubai Aviation Corp. is not granted leave to participate, as intervener, in the proceedings in Case T‑30/23.
2. Dubai Aviation Corp. shall bear its own costs and pay those incurred by Fly Persia IKE and by Mr Ali Barmodeh relating to the intervention proceedings.
3. The European Union Intellectual Property Office (EUIPO) shall bear its own costs relating to the intervention proceedings.
Luxembourg, 8 February 2024.
V. Di Bucci | | K. Kowalik-Bańczyk |