JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
20 September 2023 (*)
(Community design – Registered community design representing cooking devices – Application for registration’s renewal – Application for restitutio in integrum – Article 67 of Regulation (EC) No 6/2002)
In Case T‑616/22,
Breville Pty Ltd, established in Alexandria (Australia), represented by F. Caruso, G. Grippiotti and M. Pozzi, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by T. Klee, acting as Agent,
defendant,
THE GENERAL COURT (Sixth Chamber),
composed of M.J. Costeira, President, P. Zilgalvis and E. Tichy-Fisslberger (Rapporteur), Judges,
Registrar: A. Juhász-Tóth, Administrator,
having regard to the written part of the procedure,
further to the hearing on 7 June 2023,
gives the following
Judgment
1 By its action under Article 263 TFEU, the applicant, Breville Pty Ltd, seeks the annulment of the decision of the Third Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 20 June 2022 (Case R 613/2022-3) (‘the contested decision’).
Background to the dispute
2 By 2016 at the latest, the applicant instructed the Australian intellectual property firm Spruson & Ferguson Pty Limited (‘S&F’) to manage its design portfolio.
3 On 5 January 2016, the applicant designated, through S&F, the Società Italiana Brevetti SpA (‘SIB’), a company established in Italy, in order to file, on its behalf, an application for registration of a Community design under Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1) with EUIPO. SIB is an association of professional representatives included on the list of approved design representatives referred to in Article 78(1)(b) of Regulation No 6/2002.
4 On 12 January 2016, SIB filed with EUIPO an application for registration of a Community design in the name of and on behalf of the applicant. In that application, SIB appeared to be the latter’s representative. The Community design applied for was registered under No 1444467-0001.
5 By letter of 16 June 2020 addressed to SIB, EUIPO informed that company that the design at issue would expire on 12 January 2021 and that the application for renewal and the corresponding fee had to be submitted no later than 1 February 2021, a late renewal being possible for an additional fee within a further period of six months.
6 On 5 November 2020, S&F informed SIB that the company CPA Global, now Clarivate (‘CPA/Clarivate’), would, as a ‘specialised renewal service provider’, now be responsible for managing fees, in particular renewal fees, in respect of the design at issue.
7 On 9 November 2020, SIB informed S&F that it had taken due note of the communication of 5 November 2020.
8 Since it had not received any response to the letter referred to in paragraph 5 above nor any payment for the renewal fee, EUIPO sent a communication to SIB on 13 August 2021 stating that the design at issue had expired under Article 22(5) and Article 40(1) of Commission Regulation (EC) No 2245/2002 of 21 October 2002 implementing Regulation (EC) No 6/2002 (OJ 2002 L 341, p. 28).
9 On 18 August 2021, SIB became aware of EUIPO’s communication of 13 August 2021 regarding the expiry of the design at issue.
10 On 7 October 2021, SIB sent a copy of EUIPO’s communication of 13 August 2021 to S&F. The latter subsequently informed the applicant of the content of that communication.
11 On 2 December 2021, EUIPO notified SIB that, since the design at issue had not been renewed, EUIPO had cancelled the Community design from the Register under Article 22(5) and point (n) of Article 69(3) of Regulation No 2245/2002. EUIPO also notified it that the cancellation had taken effect on 12 January 2021.
12 On 7 December 2021, SIB filed, on the applicant’s behalf, an application for restitutio in integrum under Article 67(1) of Regulation No 6/2002 and applied for the applicant’s rights to be re-established. The renewal fee, the fee for restitutio in integrum and the additional fee were paid at the same time.
13 On 13 December 2021, EUIPO informed SIB that the application for restitutio in integrum was deemed not have been filed because the relevant fee had not been paid within the time limit laid down in Article 67(2) of Regulation No 6/2002.
14 On 20 December 2021, SIB requested the issuance of an ‘appealable Decision under Article 40(2) of Regulation (EC) No 2245/2002’.
15 By decision of 17 February 2022, the ‘Operations’ Department of EUIPO refused the application for restitutio in integrum.
16 On 12 April 2022, SIB, again on behalf of the applicant, filed an appeal under Articles 55 to 60 of Regulation No 6/2002 against the decision of the ‘Operations’ Department of EUIPO of 17 February 2022, requesting the decision to be set aside. On the same day, SIB sent to EUIPO the statement setting out the grounds of the appeal.
17 By the contested decision, the reasoning of which comprises two distinct main lines of argument, the Board of Appeal dismissed the appeal.
18 In the first line of argument of the contested decision (see paragraphs 17 to 39 of that decision), the Board of Appeal noted, in essence, that the application for restitutio in integrum had not been filed within the two-month period laid down in Article 67(2) of Regulation No 6/2002. In particular, according to the Board of Appeal, the starting point of that period corresponded to the date of removal of the cause of non-compliance in order to file an application for restitutio in integrum. That date was, in the present case, 18 August 2021, namely the date on which SIB, the applicant’s representative, had become aware of the latter’s loss of the design at issue (see paragraphs 22, 23, 29 and 33 of the contested decision). Consequently, the two-month period to file an application for restitutio in integrum had expired on 18 October 2021 (see paragraph 25 of the contested decision). Moreover, SIB had retained its status as the applicant’s representative throughout the renewal procedure until the end of its mandate, which was not notified to EUIPO (see paragraph 36, under point (d), of the contested decision). Since the application for restitutio in integrum was only submitted on 7 December 2021 (see paragraph 26 of the contested decision), it must be concluded that the application for restitutio in integrum was filed out of time (see paragraph 39 of the contested decision). Furthermore, the reference made by the applicant in its appeal to the decision of the Third Board of Appeal of 17 March 2021 in Case R 2134/2020-3, in which that board also made observations on an application for restitutio in integrum and which the applicant had referred to in support of its arguments concerning compliance with the two-week period laid down in Article 67(2) of Regulation No 6/2002, was not, in essence, relevant in the present case (see paragraph 38 of the contested decision).
19 In the second line of argument of the contested decision (see paragraphs 40 to 55 of that decision), the Board of Appeal found, in essence, that the circumstances relied on before it by the applicant to justify the failure to comply with the periods for renewal of the registration of the design at issue were not such as to permit the conclusion that the applicant or the undertakings to which the management of the design at issue had been entrusted by the applicant, namely S&F and CPA/Clarivate, had acted with ‘all due care required’ within the meaning of Article 67(1) of Regulation No 6/2002. Admittedly, the applicant claimed that, on account of a coincidence of circumstances in 2021, CPA/Clarivate was subjected to a ‘misinterpretation’ of certain instructions given by the applicant or by S&F in relation to the renewal of the Community design at issue (see paragraphs 44 and 46 of the contested decision). Nevertheless, that ‘misinterpretation’ of the instructions does not constitute an exceptional and unforeseeable event, namely an event occurring independently of the fact or despite the fact that CPA/Clarivate, for its part, observed ‘all due care’ required in the present case as regards the renewal of the design at issue and thus justifying, ultimately, the application for restitutio in integrum (see paragraph 48 of the contested decision). Nor did the applicant itself exercise all due care required by the circumstances of the case. Indeed, the evidence in the file did not show that the applicant had checked whether its instructions had been followed correctly and whether the design at issue had been duly renewed (see paragraph 49 of the contested decision).
Forms of order sought
20 The applicant claims that the Court should:
– annul the contested decision;
– grant its application for restitutio in integrum.
21 EUIPO contends that the Court should, in essence:
– dismiss the action;
– order the applicant to pay the costs.
Law
Admissibility of the evidence submitted by the applicant at the hearing
22 At the hearing, the applicant offered to add to the case file a series of copies of documents containing quotations from legal texts, a copy of a press article from 2009, a copy of an extract from a website and copies of certain pages of a report published by the European Patent Office of 2019.
23 Having been heard with regard to the applicant’s request referred to in paragraph 22 above, EUIPO pleaded the inadmissibility of the evidence submitted by the applicant.
24 In that regard, it must be borne in mind that, under Article 85(3) of the Rules of Procedure of the General Court, the main parties may, exceptionally, produce or offer further evidence before the oral part of the procedure is closed or before the decision of the General Court to rule without an oral part of the procedure, provided that the delay in the submission of such evidence is justified.
25 Since the applicant has not explained what relationship that evidence might have with the application – by linking each document to arguments set out in the application – and since the applicant has not provided any convincing explanation as to why that evidence was not lodged previously, it must be rejected as inadmissible.
26 In any event, the evidence referred to in paragraph 22 above must be rejected as inadmissible for a reason other than that mentioned in paragraph 25 above. Under Article 61(2) of Regulation No 6/2002, the General Court is called upon to assess the legality of the decisions of the Boards of Appeal of EUIPO by reviewing their application of EU law, having regard, in particular, to the facts which were submitted to them. It is not the Court’s function to review the facts in the light of documents produced for the first time before it (see, to that effect and by analogy, judgment of 18 October 2016, August Storck v EUIPO – Chiquita Brands (Fruitfuls), T‑367/14, not published, EU:T:2016:615, paragraph 13 and the case-law cited). However, the documents submitted at the hearing were not examined by the Board of Appeal for the purposes of adopting the contested decision.
Substance
27 The applicant puts forward a single plea in law, alleging infringement of Article 67(1) and (2) of Regulation No 6/2002. In order to give a useful answer to that plea, which is divided into two parts, the following points should be noted.
28 Under Article 67(1) of Regulation No 6/2002, the applicant for or holder of a registered Community design or any other party to proceedings before EUIPO who, in spite of all due care required by the circumstances having been taken, was unable to observe a time limit vis-à-vis EUIPO is to, upon application, have his or her rights re-established if the non-observance has the direct consequence, by virtue of that regulation, of causing the loss of any rights or means of redress. It is apparent from that provision that restitutio in integrum is subject to two conditions, the first being that the party has exercised all due care required by the circumstances, and the second being that the non-observance of the time limit by that party has the direct consequence of causing the loss of any right or means of redress (judgment of 21 April 2021, Lee v EUIPO (Table knives, forks and spoons), T‑382/20, not published, EU:T:2021:210, paragraph 11).
29 It is also apparent from Article 67(1) of Regulation No 6/2002 that the requirement to exercise due care lies in the first instance with the applicant for or holder of a registered Community design or any other party to proceedings before EUIPO. However, since those persons are represented, the representative is subject to the requirement to exercise due care just as much as those persons. Since the representative acts in the name of and on behalf of the applicant for or proprietor of a Community design or of any other party to proceedings before EUIPO, his or her acts must be regarded as being those persons’ acts (see, to that effect, judgment of 31 January 2019, Thun v EUIPO (Fish), T‑604/17, not published, EU:T:2019:42, paragraphs 18 and 19 and the case-law cited).
30 Lastly, it must be borne in mind that, under Article 67(2) of Regulation No 6/2002, an application for restitutio in integrum must be filed in writing within two months of the removal of the cause of non‑compliance with the time limit. Observance of time limits is a matter of public policy and restitutio in integrum is liable to undermine legal certainty. Consequently, the conditions for the application of restitutio in integrum must be interpreted strictly (judgment of 21 April 2021, Table knives, forks and spoons, T‑382/20, not published, EU:T:2021:210, paragraph 14).
The first part of the single plea in law, alleging infringement of Article 67(2) of Regulation No 6/2002
31 By the first part of its single plea in law, the applicant calls into question the Board of Appeal’s finding, set out in paragraph 39 of the contested decision, that, in essence, the application for restitutio in integrum at issue was not filed within the time limit laid down in Article 67(2) of Regulation No 6/2002.
32 First, according to the applicant, the communication of 13 August 2021 should have been sent to the applicant itself. The notification to SIB of EUIPO’s communication of 13 August 2021, which occurred on 18 August 2021, did not trigger the expiry of the abovementioned deadline referred to in the Article 67(2) because, on that date, SIB was no longer the applicant’s duly authorised representative for the purposes of the renewal procedure. The authorisation given by the applicant to SIB was valid only for the specific registration proceedings which had started and finished in 2016. That authorisation relates to an ‘exceptional situation’ in that it was not given in writing, but was indicated only on the application form for registration. Such an authorisation does not extend to all acts carried out during the lifetime of the registration of the Community design concerned. It is true that, in the field of trade mark law, the Court of Justice held, in paragraph 38 of its judgment of 30 September 2010, Evets v OHIM (C‑479/09 P, not published, EU:C:2010:571), that ‘the authorisation of the representative of a trade mark proprietor before OHIM covers all procedural steps relating to trade marks, including the procedural steps relating to the renewal of registration of an [EU] trade mark’. However, the Court did not explain whether it had taken into account the ‘exceptional situation’ in which the authorisation in question had not been granted in writing. In any event, Regulation No 6/2002 and Regulation 2245/2002 do not contain any provision that the authorisation which was merely stated in the application form for registration extends to all procedural steps or acts relating to the ensuing registration or to any further application proceedings relating to that registration. Lastly, even if one accepted EUIPO’s interpretation that the indication of the representative in the first application would be equivalent to an authorisation extending to all acts during the lifetime of the ensuing design, when EUIPO sent to SIB the communication regarding the loss of rights, the right at issue had already expired, with the result that, according to EUIPO’s interpretation, the representative’s authorisation should have been also considered as expired.
33 Secondly, the Board of Appeal should, in this case, have reached a similar decision to that reached in Case R-2134/2020-3, in the absence of which it must be considered that it infringed the principle of equal treatment. In that case, the Third Board of Appeal considered that the date of removal of the cause of non-compliance was not the date on which the representative had received EUIPO’s communication regarding the loss of rights, but the much later date on which the rightholder was informed of the loss of registration of its design by the company which it had instructed to pay the renewal fees. The factual circumstances in the present case are the same or, at least, perfectly comparable to those forming the basis of that case. As in Case R 2134/2020-3, SIB took the view that the expiration communicated by EUIPO was the outcome of the holder’s decision to surrender the registration.
34 Thirdly, the applicant alleges that the Board of Appeal did not interpret Article 67 of Regulation No 6/2002 in the light of the purpose behind the legal provisions relating to the protection of intellectual property rights, namely, in particular, the maintenance and development of creativity in the interests of authors, the guarantee of satisfactory returns on investment, and the creation of a well-functioning market to the benefit of growth and competitiveness. According to the applicant, Article 67 of Regulation No 6/2002 should not be interpreted in a way that would lead to deny intellectual property rightholders the right to enjoy the products of their ingenuity, work, or investments. Awarding restitutio in integrum in the case of non-compliance with the time limits relating to intellectual property rights would not negatively affect competitors, consumers or the general public. In this case, the ‘punitive sanction’ associated to the holder’s loss of rights would discourage investments and be contrary to the objectives of the laws on intellectual property protection and the general interest.
35 EUIPO disputes the applicant’s arguments.
36 In the present case, the Board of Appeal was fully entitled to find, in paragraph 39 of the contested decision, that the application for restitutio in integrum filed by SIB, on behalf of the applicant, had not been filed within ‘within two months of the removal of the cause of non-compliance with the time limit’, laid down in Article 67(2) of Regulation No 6/2002.
37 In the first place, in a case such as that at issue, that is to say, where a holder of a Community design is represented before EUIPO by someone else and that design has expired, the date of ‘the removal of the cause of non-compliance’, within the meaning of Article 67(2) of Regulation No 6/2002, is, in general, the date on which EUIPO has notified, to that holder’s representative, the communication referred to in Article 22(5) and Article 40(1) of Regulation No 2245/2002, that is to say, the communication that the design at issue has expired (see, to that effect and by analogy, judgment of 30 September 2010, Evets v OHIM, C‑479/09 P, not published, EU:C:2010:571, paragraph 42). That is the case because, in accordance with the first paragraph of Article 63 of Regulation No 2245/2002, any notification or other communication by EUIPO addressed to a duly authorised representative has the same effect as if it had been addressed to the represented person.
38 In the second place, in the present case, the date on which the holder of the design at issue, that is to say, the applicant, is deemed to have become aware of the loss of its rights corresponds to the date on which the communication of EUIPO of 13 August 2021 was notified to SIB, that is to say, 18 August 2021. On 18 August 2021, SIB was the applicant’s representative before EUIPO, with regard to the design at issue, which may be inferred from the following information.
39 First, it is useful to recall that, since it does not have its seat in the European Union, the applicant must, pursuant to Article 77(2) of Regulation No 6/2002, be represented in any proceedings before EUIPO by one of the natural or legal persons referred to in Article 78(1) of that regulation.
40 Secondly, on 18 August 2021, SIB appeared in EUIPO’s file as the applicant’s representative who had, on 12 January 2016, filed the application for registration of the design at issue on behalf of the applicant. Likewise, as of 18 August 2021, SIB was on the list of approved design representatives referred to in Article 78(1)(b) of Regulation No 6/2002. Furthermore, it must be stated that it is apparent from the file before the Court that, on page 3 of its notification of 16 June 2020, addressed to SIB (see paragraph 5 above), EUIPO expressly requested SIB to communicate any changes in the name or address of the recipient of the notification relating to the expiry of the design at issue.
41 At no time before 18 August 2021 was EUIPO provided with a statement that the applicant’s representation mandate carried out by SIB was to end before 18 August 2021. Under Article 62(6) of Regulation No 2245/2002, any representative who has ceased to be authorised is to continue to be regarded as the representative until the termination of his or her authorisation has been communicated to EUIPO.
42 Thirdly, it must be pointed out that SIB’s capacity to act on behalf of the applicant, that is to say SIB’s authorisation, covered all procedural steps relating to the design at issue, namely, in particular, all the acts necessary to complete the renewal procedure for the Community design at issue in the present case (see, by analogy, judgment of 30 September 2010, Evets v OHIM, C‑479/09 P, not published, EU:C:2010:571, paragraph 38).
43 In the third place, since it had begun to run on 18 August 2021, the two-month period referred to in Article 67(2) of Regulation No 6/2002 expired, in the present case, on 18 October 2021. By contrast, the application for restitutio in integrum was not filed until 50 days after that date, namely on 7 December 2021.
44 Neither the finding referred to in paragraph 36 above nor the assessments set out in paragraphs 37 to 43 above are called into question by the applicant’s arguments.
45 First, the applicant claims, in essence, that, on 18 August 2021, SIB was no longer the applicant’s representative. That is due to the fact that the authorisation granted by the applicant to SIB in 2016 came within an ‘exceptional situation’ in that it was not granted in writing but merely stated on the application form for registration. On account of that ‘exceptional situation’, more specifically, in the absence of an express statement as to a general scope, if any, that authorisation extended solely to the registration procedure for the design at issue (to the exclusion, therefore, of other procedural steps relating to the same design; see paragraph 32 above). That argument must, however, be rejected as unfounded.
46 Admittedly, the legislation on Community designs is subject to the possibility of a written authorisation being granted to an approved representative on the list referred to in Article 78(1)(b) of Regulation No 6/2002 and that an authorisation may be signed and placed on EUIPO’s file in order to take account of what follows from Article 62 of Regulation No 2245/2002. However, there is nothing to support the conclusion that the situation in which the authorisation granted to an approved representative appearing on the list referred to in Article 78(1)(b) of Regulation No 6/2002 was merely stated on the application form for registration, without having been put in writing in a specific document by the represented party, constitutes an ‘exceptional situation’ allowing it to be given a scope other than that of a general authorisation granted in writing. In principle, any authorisation, whether in writing or not, is deemed to be of general scope, unless there is an express statement, in writing or otherwise, as to its limits. That interpretation is dictated by the need to protect third parties who deal with a representative, such as SIB. The silence of the provisions of Regulation No 6/2002 and Regulation No 2245/2002 as to whether or not the authorisation stated in the application form for registration extends to all procedural steps relating to a particular Community design has moreover no bearing on that interpretation. In that regard, it should be noted that the interpretation of the ‘authorisation’ adopted by the Court of Justice in the judgment of 30 September 2010, Evets v OHIM (C‑479/09 P, not published, EU:C:2010:571), referred to in paragraph 42 above, applies, by analogy, to the field of designs.
47 Likewise, it is necessary to reject as unfounded the applicant’s argument that, in essence, as, on 18 August 2021, the design at issue had already expired, namely since 12 January 2021, the representative’s authorisation should also have been found to have expired (see paragraph 32 above). Whether an authorisation is granted in writing or not, an authorisation, as a unilateral legal act carried out by the party giving authorisation, must be distinguished, in particular, from all the rights in respect of which such an authorisation may be used, with the result that the loss of such a right does not in any way entail the loss of authorisation. In the present case, SIB’s authorisation must therefore be distinguished from the fate of the Community design at issue as such, with the result that the expiry of that right cannot result in SIB ceasing to have authorisation.
48 Another reason why the applicant’s argumentation as to the alleged loss of SIB’s authorisation due to the expiry of the design at issue cannot be accepted is that it conflicts with the wording of Article 77(2) of Regulation No 6/2002, as EUIPO has, in essence, rightly argued. It should be recalled that, under that provision, persons not having their seat in the European Union must be represented in all proceedings before EUIPO by an approved representative under Article 78(1) of that regulation, other than in filing an application for registration. However, in order for EUIPO to fulfil its obligations to provide information under Article 22(5) and Article 40(1) of Regulation No 2245/2002, EUIPO must be able to continue to approach a representative such as SIB, namely the only approved representative in the present case.
49 In any event, the applicant’s interpretation of the SIB’s loss of authorisation is in no way compatible with the wording of Article 62(6) of Regulation No 2245/2002, according to which any representative who has ceased to be authorised is to continue to be regarded as the representative until the termination of his or her authorisation has been communicated to EUIPO. On the relevant date, namely 18 August 2021, EUIPO was required to continue to communicate with SIB in relation to the design at issue because, as already mentioned in paragraph 38 above, before 18 August 2021 it had not received express notification that SIB’s mandate had ended, irrespective of whether or not the right at issue had expired.
50 Secondly, the arguments put forward by the applicant to demonstrate an infringement, by the Board of Appeal, of the principle of equal treatment in so far as the Board of Appeal departed from what it decided in Case R 2134/2020-3 must be rejected as ineffective (see paragraph 33 above).
51 According to settled case-law, EUIPO is indeed under a duty to exercise its authorisations in accordance with the general principles of EU law. In the light of the principles of equal treatment and good administration, EUIPO must take into account the decisions already taken in respect of similar applications and must consider with special care whether it should decide in the same way or not. Nonetheless, when EUIPO carries out such an examination, the way in which those principles are applied must, however, be consistent with respect for the principle of legality (see, to that effect, judgment of 20 January 2015, Aic v OHIM – ACV Manufacturing (Heat exchangers), T‑615/13, not published, EU:T:2015:31, paragraph 28 and the case-law cited). Lastly, it must be borne in mind that the legality of the decisions of the Board of Appeal, which are adopted in the exercise of circumscribed authorisations and are not a matter of discretion, must be assessed solely on the basis of the applicable regulation at issue, as it is interpreted by the Courts of the European Union, and not on the basis of a previous decision-making practice of EUIPO, which cannot, in any event, bind the Courts of the European Union (judgments of 15 September 2005, BioID v OHIM, C‑37/03 P, EU:C:2005:547, paragraph 47; of 12 January 2006, Deutsche SiSi-Werke v OHIM, C‑173/04 P, EU:C:2006:20, paragraph 48; and of 26 April 2007, Alcon v OHIM, C‑412/05 P, EU:C:2007:252, paragraph 65).
52 The conditions of Article 67 of Regulation No 6/2002, in particular the question of the calculation of the period referred to in paragraph 2 of that provision, fall within the scope of circumscribed authorisations and are not a matter of discretion, with the result that the decision adopted by the Board of Appeal in Case R 2134/2020-3 in the light of the specific facts of that case as such was not in any way decisive for the purposes of the review of the legality of the contested decision, which must be examined in the light of the facts of the present case.
53 Thirdly, the arguments alleging that the Board of Appeal’s interpretation, in the present case, of Article 67 of Regulation No 6/2002 amounts to a ‘punitive sanction’ imposed on the applicant and resulting in the loss of its rights and which should be avoided unless it is intended to be outside the objectives of the legislation on intellectual property (see paragraph 34 above), must be rejected.
54 First, the loss of an intellectual property right due to non-compliance with the rules concerning the restitutio in integrum procedure is in no way ‘punitive’; it is not a penalty. Secondly, on closer inspection, those arguments appear to be of a very general nature. In the light of the applicant’s obligation to demonstrate the existence of an error of law or of assessment of the specific facts vitiating the contested decision, general statements of the kind which the applicant makes cannot suffice to call into question the application of Article 67 of Regulation No 6/2002. In any event, as EUIPO correctly submitted in its response, at the time when it created Article 67 of Regulation No 6/2002, the EU legislature was well aware of the objectives relating to investment protection which were set out in the legislation on intellectual property rights, which, moreover, it had itself adopted. The same arguments of the applicant are, moreover, also contrary to the case-law of the Courts of the European Union which established that compliance with time limits was a matter of public policy and that restitutio in integrum of a registration after its cancellation was liable to undermine legal certainty, with the result that the conditions for the application of restitutio in integrum must be interpreted strictly (see the case-law referred to in paragraph 30 above).
55 It follows from the foregoing that the first part of the applicant’s single plea in law must be rejected.
The second part of the single plea in law, alleging infringement of Article 67(1) of Regulation No 6/2002
56 In the second part of its single plea in law, the applicant submits that the Board of Appeal’s conclusion, set out, in essence, in paragraphs 40 to 55 of the contested decision, that the applicant did not act with ‘all due care required by the circumstances’ amounts to a misapplication and therefore to an infringement of Article 67(1) of Regulation No 6/2002.
57 In that regard, it should be borne in mind that the condition relating to compliance with the two-month period for filing an application for restitutio in integrum, set out in Article 67(2) of Regulation No 6/2002, and the condition relating to the demonstration of the ‘due care required by the circumstances’, referred to in Article 67(1) of that regulation, and to which the second part of the applicant’s plea relates, are cumulative. The absence of one of them is therefore sufficient to render Article 67 of that regulation inapplicable and to refuse to grant restitutio in integrum.
58 Since, as is apparent from the foregoing considerations, the applicant has not shown that it complied with the two-month period for filing an application for restitutio in integrum, set out in Article 67(2) of Regulation No 6/2002, it is not necessary to examine the merits of the arguments claiming that the Board of Appeal misapplied Article 67(1) of Regulation No 6/2002 and the Board of Appeal’s alleged misinterpretation of the concept of ‘due care required by the circumstances’ referred to in Article 67(1).
59 In those circumstances, the action must be dismissed.
Costs
60 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by EUIPO.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1. Dismisses the action;
2. Orders Breville Pty Ltd to pay the costs.
Costeira | Zilgalvis | Tichy-Fisslberger |
Delivered in open court in Luxembourg on 20 September 2023.
V. Di Bucci | | M. van der Woude |