ORDER OF THE GENERAL COURT (Sixth Chamber)
26 September 2011(*)
(Community trade mark – Article 134(1) of the Rules of Procedure – Intervention by the other party to the proceedings before the Board of Appeal – Response lodged out of time – Rejection)
In Case T‑143/11,
Consorzio vino Chianti Classico, established in Radda in Chianti (Italy), represented by S. Corona and G. Ciccone, lawyers,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by V. Melgar and G. Mannucci, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM being
Fédération française de rugby (FFR), established in Marcoussis (France),
ACTION against the decision of the Fourth Board of Appeal of OHIM of 10 January 2011 (Case R 43/2010-4), concerning opposition proceedings between Consorzio vino Chianti Classico and Fédération française de rugby (FFR),
THE GENERAL COURT (Sixth Chamber),
composed of E. Moavero Milanesi (Rapporteur), President, N. Wahl and S. Soldevila Fragoso, Judges,
Registrar: E. Coulon,
makes the following
Order
1 On 13 February 2007, the Fédération française de rugby (FFR) filed an application for registration of a Community trade mark with the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) pursuant to Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)).
2 On 31 October 2007, the applicant, Consorzio vino Chianti Classico, filed a notice of opposition, pursuant to Article 42 of Regulation No 40/94 (now Article 41 of Regulation No 207/2009), to registration of the mark applied for.
3 As the Opposition Division upheld the opposition by decision of 29 October 2009, FFR filed a notice of appeal with OHIM, under Articles 58 to 64 of Regulation No 207/2009, against that decision.
4 By decision of 10 January 2011, the Fourth Board of Appeal annulled the abovementioned decision of the Opposition Division and rejected the opposition brought by the applicant.
5 By application lodged at the Registry of the Court on 9 March 2011, the applicant brought an action against the abovementioned decision of the Board of Appeal.
6 In accordance with Article 133(2) of the Rules of Procedure of the General Court, the application was served on OHIM and FFR, by letters from the Registrar of the Court of 8 April 2011, receipt of which was acknowledged on 14 and 13 April 2011 respectively.
7 Under the first subparagraph of Article 135(1) of the Rules of Procedure, OHIM and the other party to the proceedings before the Board of Appeal have a period of two months from the service of the application to lodge their responses.
8 That period is extended on account of distance by a single period of ten days under Article 102(2) of the Rules of Procedure. Furthermore, pursuant to the first subparagraph of Article 101(2) of the Rules of Procedure, if a period would otherwise end on a Saturday, Sunday or official holiday, it is to be extended until the end of the first following working day.
9 As 23 June is an official holiday in Luxembourg, the period for lodging the response expired on 24 June 2011 both for OHIM and for FFR.
10 OHIM’s response was received at the Registry of the Court on 21 June 2011 by fax and as an original on 22 June 2011, that is to say within the time-limit.
11 FFR sent its response to the Registry of the Court by fax on 14 June 2011. Pursuant to Article 43(6) of the Rules of Procedure, the date on which a copy of the signed original of a pleading is received at the Registry of the Court by fax is to be deemed to be the date of lodgment for the purposes of compliance with the time-limits for taking steps in proceedings only if the signed original of the pleading is lodged at the Registry no later than ten days after receipt of the fax. Consequently, in the present case, that period of ten days ended on 24 June 2010, that is to say on the same date as that of the expiry of the period referred to in paragraph 9 above.
12 The signed original of FFR’s response was not lodged at the Registry of the Court until 27 June 2011.
13 Clearly, that lodgment took place after the expiry of the period of ten days referred to in paragraph 11 above and that fact precludes the date on which the response was sent by fax from being taken into consideration.
14 Accordingly, it must be concluded that that response was lodged out of time.
15 In the context of the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure, the Court (Sixth Chamber) requested that FFR submit, by 3 August 2011 at the latest, its observations as regards the belated lodgment of its response.
16 FFR has not submitted written observations to the Court.
17 Under Article 134(1) of the Rules of Procedure, the parties to the proceedings before the Board of Appeal other than the applicant may participate, as interveners, in the proceedings before the General Court by responding to the application in the manner and within the period prescribed.
18 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 (see, to that effect, order in Case T-94/02 Boss v OHIM – Delta Biomichania Pagatou (BOSS) [2004] ECR II-813, paragraph 17).
19 In the absence of any provisions in the Statute of the Court of Justice and the Rules of Procedure expressly governing certain aspects of the treatment of interventions in respect of proceedings relating to intellectual property, the procedural provisions laid down in Articles 115 and 116 of the Rules of Procedure should be applied by analogy (see, by analogy, order in BOSS, paragraph 27; order of 19 June 2009 in Case T-361/08 Peek & Cloppenburg and van Graaf v OHIM – Queen Sirikit Institute of Sericulture (Thai Silk), not published in the ECR, paragraph 9; and order of 26 May 2011 in Case T‑527/10 Google v OHIM – G‑mail (GMail), not published in the ECR, paragraph 12).
20 Under the third subparagraph of Article 116(1) of the Rules of Procedure, the President is to decide on the application to intervene by order or is to refer the decision to the General Court. The order must be reasoned if the application is dismissed.
21 The President of the Sixth Chamber of the Court referred to the Chamber the question whether, in the circumstances of the present case, FFR may be allowed to participate in the proceedings before the Court as an intervener pursuant to Article 134(1) of the Rules of Procedure.
22 According to the case-law, the time-limits laid down in Articles 115 and 116 of the Rules of Procedure are mandatory and as observance thereof is a matter of public policy they are not within the discretion of either the parties or even the Court (see, to that effect, order of the President of the Fifth Chamber in Case T‑194/95 INTV II Area Cova and Others v Council [1996] ECR II-343, paragraph 2, and order of the President of the Fourth Chamber in Case T‑201/04 Microsoft v Commission [2005] ECR II-1491, paragraph 42).
23 Furthermore, compliance with the time-limits laid down for submitting an application to intervene makes it possible to ensure that there is a fair balance between the fundamental right to intervene in proceedings and the sound administration of justice (see, by analogy, order of the President of 15 July 2011 in Case T‑213/11 P(I) College of Staff Representatives of the EIB and Others v Bömcke, not published in the ECR, paragraph 22).
24 In the present case, FFR’s response was lodged after the expiry of the period provided for in the first subparagraph of Article 135(1) of the Rules of Procedure. Clearly, therefore, the application to intervene implicitly contained in that response was submitted out of time.
25 Furthermore, as FFR did not comply with the measure of organisation of procedure adopted by the Court (see paragraph 15 above), it did not provide any information permitting, if appropriate, the inference that the delay in lodging the response was covered by the second paragraph of Article 45 of the Statute of the Court of Justice, under which no right is to be prejudiced in consequence of the expiry of a time-limit if the party concerned proves the existence of unforeseeable circumstances or of force majeure, even though the General Court gave it the opportunity to submit its observations in that regard.
26 It is apparent from the foregoing that FFR may not be granted leave to participate in the proceedings in Case T-143/11 as an intervener under Article 134(1) of the Rules of Procedure.
Costs
27 Under Article 87(1) of the Rules of Procedure, a decision as to costs is to be given in the final judgment or in the order which closes the proceedings. As the present order closes the proceedings with regard to FFR, a decision as to the costs relating to its intervention must be given.
28 As the present order was adopted before the parties were able to incur costs connected with the procedural activity of FFR, it is sufficient to decide that the latter should bear its own costs.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby orders:
1. The Fédération française de rugby (FFR) is not granted leave to participate in the proceedings in Case T-143/11 as an intervener under Article 134(1) of the Rules of Procedure of the General Court.
2. FFR shall bear its own costs.
Luxembourg, 26 September 2011.
E. Coulon | | E. Moavero Milanesi |