Joined Cases T-380/02 and T-128/03

Success-Marketing Unternehmensberatungsgesellschaft mbH

v

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

(Community trade mark – Application for restitutio in integrum – Conditions governing notification of decisions and communications by OHIM – Facsimile transmission)

Summary of the Judgment

1.      Community trade mark – Procedural provisions – Notification – Notification by fax – Means of transmission which may involve any decision or communication of the Office – Notification by post – Obligation on the Office to serve by post in the case of decisions setting a period of time running – None

(Commission Regulation No 2868/95, Art. 1, Rules 61(2), 62(1) and 65)

2.      Community trade mark – Procedural provisions – Notification – Irregularities in notification – Possibility for the Office to determine the legal effects of due notification – Formal requirements – None

(Commission Regulation No 2868/95, Art. 1, Rule 68)

1.      Rule 65 of Regulation No 2868/95, implementing Regulation No 40/94 on the Community trade mark, provides that the notification by fax carried out by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) is to be effected by the transmission either of the original or a copy under Rule 61(1) of that regulation ‘of the document to be notified’. The general formulation implies that that mode of notification may be employed whatever the nature of the document to be notified. Transmission by fax may therefore involve any decision or communication of the Office.

In regard to notification by post, it is apparent from the wording of Rule 62(1) of Regulation No 2868/95, which covers the totality of documents notifiable by the Office, that the detailed rules laid down therein apply only where it has been decided that notification should be effected by post. It would be to render devoid of effect the other modes of notification laid down in Rule 61(2) of that regulation were the view to be taken that, save for notification by publication in the Community Trade Marks Bulletin, the Office is obliged to effect notification solely by post of decisions subject to a time-limit for appeal and of communications subject to some other time-limit.

(see paras 58, 60)

2.      Under Rule 68 of Regulation No 2868/95, implementing Regulation No 40/94 on the Community trade mark, expressly entitled ‘Irregularities in notification’, where a document has reached the addressee, if the Office for Harmonisation in the Internal Market (Trade Marks and Designs) is unable to prove that it has been duly notified, or if provisions relating to its notification have not been observed, the document is deemed to have been notified on the date established by the Office as the date of receipt.

That provision, taken as a whole, must be construed as affording to the Office the possibility of establishing the date on which a document reached its addressee, if it is not possible to prove due notification or the provisions relating to its notification have not been observed; OHIM must be entitled therefore to attach to that proof the legal effects of due notification. Since Rule 68 of Regulation No 2868/95 lays down no formalities for adducing that proof, it may be adduced by means of a fax provided that the conditions for the use of that method of transmission confer probative value on it.

(see paras 63-65)