Joined Cases T-20/08 and T-21/08

Evets Corp.

v

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

(Community trade mark – Community word mark DANELECTRO and Community figurative mark QWIK TUNE – Failure to observe the time‑limit for submitting a request for renewal of the trade marks – Application for restitutio in integrum – Reformatio in pejus – Rights of the defence – Right to be heard – Article 61(2), second sentence of Article 73, and Article 78 of Regulation (EC) No 40/94 (now Article 63(2), second sentence of Article 75, and Article 81 of Regulation (EC) No 207/2009))

Summary of the Judgment

1.      Community trade mark – Procedural provisions – Restitutio in integrum – Time‑limit for submitting the application

(Council Regulation No 40/94, Art. 78(2) and (3); Commission Regulation No 2868/95, Art. 1, Rule 77)

2.      Community trade mark – Appeals procedure – Appeal brought against a unit of OHIM

(Council Regulation No 40/94, Art. 62(1))

3.      Community trade mark – Decisions of the Office – Observance of the rights of the defence

(Council Regulation No 40/94, Art. 73)

1.      Under Article 78(2) and (3) of Regulation No 40/94 on the Community trade mark, an application for restitutio in integrum must be filed in writing within two months from the removal of the cause of non-compliance with the time‑limit which has the direct consequence of causing the loss of any right or means of redress.

The date on which the loss of a right is brought to the attention of the representative must be deemed to be the date on which the represented person became aware of it. Pursuant to Rule 77 of Regulation No 2868/95 implementing Regulation No 40/94 on the Community trade mark, any notification or other communication addressed by the Office of Harmonisation in the Internal Market (Trade Marks and Designs) to a duly authorised representative is to have the same effect as if it had been addressed to the represented person. The same applies to any communication addressed to OHIM by a duly authorised representative, which has the same effect as if it originated from the represented person. Therefore, with regard to OHIM, what matters are its communications with the representative and not the communications between the representative and the represented person.

(see paras 21-23)

2.      It follows from Article 62(1) of Regulation No 40/94 on the Community trade mark that, following the examination as to the merits of the appeal, the Board of Appeal is to decide that appeal and that, in doing so, it may ‘exercise any power within the competence of the department which was responsible for the decision appealed’, that is to say, as regards an application for restitutio in integrum, by rejecting it or declaring it to be well founded, thereby either upholding or reversing the decision taken at first instance. Consequently, through the effect of the appeal brought before it, the Board of Appeal is called upon to carry out a new, full examination of the merits of the application for restitutio in integrum, in terms of both law and fact.

Issues relating to admissibility cannot be excluded from that ‘new, full examination’ of the application for restitutio in integrum. According to settled case‑law, the rules on time‑limits were laid down with a view to ensuring legal certainty and avoiding any discrimination or arbitrary treatment. That general statement applies also to time‑limits laid down in regulations on the Community trade mark.

(see paras 38-39)

3.      Pursuant to the second sentence of Article 73 of Regulation No 40/94 on the Community trade mark, decisions of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) are to be based only on reasons or evidence on which the parties concerned have had an opportunity to present their comments. The general principle of protection of the right to defend oneself is enshrined in the law of Community trade marks by that provision. According to that general principle of Community law, a person whose interests are appreciably affected by a decision taken by a public authority must be given the opportunity to make his point of view known. The right to be heard extends to all the factual and legal material which forms the basis of the decision, but not to the final position which the authority intends to adopt.

Moreover, the rights of the defence are infringed by reason of a procedural irregularity only in so far as the irregularity actually has an effect on the ability of the undertakings involved to defend themselves. Consequently, non-compliance with rules in force whose purpose is to protect the rights of the defence can vitiate the administrative procedure only if it is shown that the procedure could have had a different outcome if the rules had been observed.

(see paras 47-48)