ORDER OF THE PRESIDENT OF THE THIRD CHAMBER OF THE GENERAL COURT
12 March 2024 (*)
(EU trade mark – Article 173(1) of the Rules of Procedure – Intervention by the other party to the proceedings before EUIPO – Response lodged out of time – No unforeseeable circumstances, force majeure or excusable error – Rejection)
In Case T‑563/23,
Pernod Ricard, established in Paris (France), represented by T. de Haan and S. Vandezande, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by V. Ruzek, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
West End Drinks Ltd, established in London (United Kingdom), represented by J.-C. Rebling, lawyer,
ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 19 June 2023 (Case R 1380/2022-5), relating to opposition proceedings between Pernod Ricard and West End Drinks Ltd,
THE PRESIDENT OF THE THIRD CHAMBER OF THE GENERAL COURT
makes the following
Order
1 On 18 July 2018, the other party to the proceedings before the European Union Intellectual Property Office (EUIPO), West End Drinks Ltd, filed an application for registration of an EU trade mark with EUIPO pursuant to 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).
2 On 11 December 2018, the applicant, Pernod Ricard, filed a notice of opposition to registration of the mark applied for.
3 On 2 June 2022, the Opposition Division upheld the opposition.
4 On 28 July 2022, the other party to the proceedings before EUIPO filed a notice of appeal with EUIPO against the decision of the Opposition Division.
5 By decision of 19 June 2023 (‘the contested decision’), the Board of Appeal upheld the appeal and rejected the opposition in its entirety.
6 By application lodged at the Registry of the General Court on 12 September 2023, the applicant brought an action for the annulment of the contested decision.
7 On 17 October 2023, the application was served on the other party to the proceedings before EUIPO, of which that party acknowledged receipt on 20 October 2023.
8 On 12 January 2024, the other party to the proceedings before EUIPO lodged its response.
9 In accordance with Article 173(1) of the Rules of Procedure of the General Court, a party to the proceedings before the Board of Appeal other than the applicant may participate, as intervener, in the proceedings before the Court by responding to the application in the manner and within the time limit prescribed.
10 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 interveners, in particular, were adopted (order 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).
11 In the absence of any provisions in the Statute of the Court of Justice and the Rules of Procedure of the General Court expressly governing certain aspects of dealing with interventions in intellectual property proceedings, the procedural provisions of Articles 19 and 144 of those rules of procedure must be applied by analogy (order of 18 March 2016, MOUNTAIN CITRUS SPAIN, T‑495/15, not published, EU:T:2016:179, paragraph 9).
12 Pursuant to Article 19 and Article 144(5) and (6) of the Rules of Procedure, the President him- or herself is to decide on the application to intervene by order.
13 In that respect, it should be borne in mind that, pursuant to Article 60 in conjunction with Article 179 of the Rules of Procedure, the other party to the proceedings before EUIPO has a time limit of two months, extended on account of distance by a single period of 10 days, to submit its response and that time limit may, in exceptional circumstances, be extended by the President at the reasoned request of the party concerned.
14 In the present case, the time limit available to the other party to the proceedings before EUIPO for submitting its response expired on 2 January 2024. As has been stated in paragraph 8 above, the written statement in question was not lodged until 12 January 2024.
15 By a measure of organisation of procedure of 2 February 2024, adopted pursuant to Article 89 of the Rules of Procedure, the Court (Third Chamber) invited the other party to the proceedings before EUIPO to submit observations on the late submission of that party’s response in the light of Article 45(2) of the Statute of the Court of Justice.
16 On 5 February 2024, the other party to the proceedings before EUIPO submitted its observations. It states that, by letter of 12 December 2023, the Court Registry had sent it a corrigendum decision of the contested decision and had set a ‘new time limit’ which expired on 12 January 2024 for submitting its observations on the corrigendum decision. It contends that the applicant’s observations and its own observations on that corrigendum decision could have an impact on the scope and the substance of the action before the Court. Accordingly, it argues that it had understood that, logically and implicitly, the initial time limit for lodging the statement in intervention had been replaced by the new time limit of 12 January 2024.
17 In accordance with the case-law, the concept of force majeure must be understood in the sense of unusual and unforeseeable circumstances beyond the operator’s control, the consequences of which could not have been avoided even if all due care had been exercised. The latter condition, which corresponds to the subjective element of unforeseeable circumstances or force majeure, involves the obligation, on the part of the party concerned, to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices. Sufficient diligence requires, in addition, continuous action aimed at identifying and assessing potential risks and the ability to take appropriate and effective steps in order to avoid them (see orders of 4 May 2016, Monster Energy v EUIPO, C‑602/15 P, not published, EU:C:2016:331, paragraph 35, and of 23 February 2021, Frutas Tono v EUIPO – Agrocazalla (Marién), T‑587/19, not published, EU:T:2021:107, paragraph 29).
18 It is also clear from the case-law that, under EU rules on time limits for bringing proceedings, the concept of excusable error must be strictly construed and relates only to exceptional circumstances in which, in particular, the conduct of the institution concerned has been, either in itself or to a significant extent, such as to give rise to understandable confusion on the part of a party acting in good faith and exercising all the diligence required of a normally experienced trader (see orders of 11 June 2020, GMPO v Commission, C‑575/19 P, not published, EU:C:2020:448, paragraph 36, and of 9 March 2022, Glaxo Group v EUIPO – Cipla Europe (Shape of an inhaler), T‑477/21, not published, EU:T:2022:144, paragraph 20).
19 It must be held that none of the circumstances relied on by the other party to the proceedings before EUIPO and referred to in paragraph 16 above has the unusual and unforeseeable character required by the case-law nor is there a conduct, either in itself or to a significant extent, such as to give rise to understandable confusion on the part of the other party to the proceedings before EUIPO.
20 In the letter of 17 October 2023, the Court Registrar clearly drew the attention of the other party to the proceedings before EUIPO to the fact that, pursuant to Article 179 of the Rules of Procedure, its possible response had to be submitted within a time limit of two months from the service of the application and that that time limit could, in exceptional circumstances, be extended by the President at the reasoned request of the party concerned. In the same letter, that party’s attention was also drawn to Article 173 of the Rules of Procedure which sets out the conditions for acquiring or losing the status of intervener.
21 Likewise, in the letter from the Court Registrar of 12 December 2023, the other party to the proceedings before EUIPO was informed that the President of the Third Chamber had decided to add the corrigendum decision of the contested decision to the file and that, for the remainder of the proceedings, it had a time limit which expired on 12 January 2024 to submit its observations on that document. It is important to note that the letter in question stated, without any ambiguity, that the time limit of 12 January 2024 concerned solely the observations on the corrigendum decision and nowhere did it refer to a ‘new time limit’ for lodging the response.
22 Consequently, the time limits set in the letter of 17 October 2023 and that of 12 December 2023, respectively, were clearly distinct, concerned different procedural documents and thus served different purposes.
23 Accordingly, and contrary to what the other party to the proceedings before EUIPO contends, the letter of the Registry of 12 December 2023 could not in any way be interpreted as indicating the setting of a ‘new time limit’ for lodging its response.
24 In addition, the ‘retroactive’ request made by the other party to the proceedings before EUIPO for an extension of the time limit for lodging its response cannot be granted. Apart from the fact that such a time limit can be extended only in exceptional circumstances, the reasoned request to that effect must be made in good time before the expiry of the time limit in question, which has not been the case here.
25 In view of all the foregoing, it must be concluded that the response of the other party to the proceedings before EUIPO was lodged out of time and that the evidence put forward by that party does not establish the existence of unforeseeable circumstances, of force majeure or of an excusable error.
26 It follows that the other party to the proceedings before EUIPO is not granted leave to participate in the proceedings in Case T‑563/23 as intervener pursuant to Article 173(1) of the Rules of Procedure, and that the response which it lodged out of time is inadmissible.
Costs
27 Under Article 133 of the Rules of Procedure, a decision as to costs is to be given in the judgment or order which closes the proceedings. Since the present order closes the proceedings vis-à-vis the other party to the proceedings before EUIPO, a decision must be given on the costs relating to its intervention.
28 As the present order has been adopted before the parties could have incurred costs associated with the procedural activity of the other party to the proceedings before EUIPO, it is sufficient to decide that the latter must bear its own costs.
On those grounds,
THE PRESIDENT OF THE THIRD CHAMBER OF THE GENERAL COURT
hereby orders:
1. West End Drinks Ltd is refused leave to participate in the proceedings in Case T‑563/23 as intervener pursuant to Article 173(1) of the Rules of Procedure of the General Court.
2. West End Drinks shall bear its own costs.
Luxembourg, 12 March 2024.