Action brought on 6 February 2013 - Melt Water v OHIM (NUEVA)
(Case T-61/13)
Language of the case: Lithuanian
Parties
Applicant: Research and Production Company 'Melt Water' UAB (Klaipėda, Lithuania) (represented by V. Viešiūnaitė, lawyer)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Form of order sought
annul the decision of the Fourth Board of Appeal of OHIM of 3 December 2012 in Case R 1794/2012-4 and treat the applicant's appeal relating to the trade mark NUEVA (Application No 010573541) as having been filed;
award costs in favour of the applicant.
Pleas in law and main arguments
Applicant for a Community trade mark: the applicant
Community trade mark in respect of which registration is sought: the figurative mark NUEVA for goods in Class 32 - Application No 010573541 for a Community trade mark
Decision of the Examiner: application rejected
Decision of the Board of Appeal: appeal deemed not to have been filed
Pleas in law: in the contested decision of 3 December 2012, the defendant wrongly held that the appeal lodged by the applicant had to be deemed not to have been filed, pursuant to Article 60 of Regulation No 207/2009
2 and Rule 49(3) of Regulation No 2868/95, on the ground that the fee for the appeal had not been paid within the prescribed period. The applicant takes issue with the defendant's position, according to which that fee had to be paid within the two-month period prescribed for filing a notice of appeal. The applicant submits that it is evident both from the examiner's decision to reject the application for a trade mark and from the official translation into Lithuanian of Article 60 of Regulation No 207/2009 that the fee for the appeal has to be linked to the filing of the statement setting out the grounds of the appeal, and not to the filing of the notice of appeal. The applicant was therefore justified in linking payment of the appeal fee to the period for filing the statement setting out the grounds of the appeal, and it made that payment within that period.
In the applicant's view, the Lithuanian translation of Regulation No 207/2009 must be regarded as authentic and the determination as to whether the appeal fee paid by the applicant to the defendant was received in time has to be based on the Lithuanian text of that regulation. The applicant also points out that in the case where an authentic text in the language of a specific Member State - in this case, the Lithuanian text - is ambiguous and its translation does not correspond to the texts in other languages, the measure must, with a view to ensuring legal certainty and accuracy, be interpreted in such a way that it corresponds as closely as possible to the interests of the person to whom it is addressed, in particular if a contrary interpretation might give rise to negative consequences for that person.
____________1 - Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).2 - Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).