ORDER OF THE GENERAL COURT (Seventh Chamber)
9 November 2011(*)
(Community trade mark – Applicant represented by a lawyer who is a not a third person – Inadmissibility)
In Case T‑243/11,
Glaxo Group Ltd, established in Greenford (United Kingdom), represented by O. Benito and C. Mansell, Solicitors,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by P. Geroulakos, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM being
Farmodiética – Cosmética, Dietética e Produtos Farmacêuticos, Lda, established in Estarda de S. Marcos (Portugal),
ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 25 February 2011 (Case R 665/2010-4), concerning opposition proceedings between Farmodiética – Cosmética, Dietética e Produtos Farmacêuticos, Lda and Glaxo Group Ltd,
THE GENERAL COURT (Seventh Chamber),
composed of A. Dittrich, President, I. Wiszniewska-Białecka (Rapporteur) and M. Prek, Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Registry of the General Court on 26 April 2011,
having regard to the Court’s written question to the parties,
having regard to the observations lodged by the parties at the Court Registry on 18 and 21 July 2011,
having regard to the response lodged at the Court Registry on 3 August 2011,
makes the following
Order
Procedure and forms of order sought
1 By application lodged at the Court Registry on 26 April 2011, the present action was brought on behalf of the applicant, Glaxo Group Ltd, by Oscar Benito, acting in his capacity as a solicitor.
2 The present action is directed against the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 25 February 2011 (Case R 665/2010‑4), concerning opposition proceedings between Farmodiética – Cosmética, Dietética e Produtos Farmacêuticos, Lda and Glaxo Group Ltd.
3 In its application, the applicant requested that the Court stay the proceedings until a ruling was given in an action for annulment brought before the Portuguese courts which concerned the earlier national mark on which the opposition to its application for a Community mark was founded. OHIM did not object to the staying of the proceedings. The other party to the proceedings before the Board of Appeal did not lodge observations within the prescribed period.
4 By letters of the Registrar of 5 July 2011, having regard to the fact that, according to the application and its annexes, the applicant’s representative works for a company which is part of the same group of companies as the applicant, the Court put a written question to the parties. The parties were invited to comment on the admissibility of the action in the light of the third and fourth paragraphs of Article 19 and the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, the first subparagraph of Article 43(1) of the Rules of Procedure of the General Court, the judgment in Case C‑550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission [2010] ECR I‑0000, paragraphs 41 to 49, the order of 29 September 2010 in Joined Cases C‑74/10 P and C‑75/10 P EREF v Commission, not published in the ECR, paragraph 44 et seq., the order of 21 March 2011 in Joined Cases T‑139/10, T‑280/10 to T‑285/10 and T‑349/10 to T‑352/10 Milux v OHIM (REFLUXCONTROL), not published in the ECR, and the order of 21 March 2011 in Case T‑175/10 Milux v OHIM (FERTILITYINVIVO), not published in the ECR.
5 The applicant and OHIM lodged observations within the period prescribed.
6 In its application, the applicant claims that the Court should:
– annul the decision of the Fourth Board of Appeal of OHIM of 25 February 2011 (Case R 665/2010-4) and declare that the opposition made by the other party to proceedings before the Board of Appeal is unfounded;
– order OHIM and/or the other party to the proceedings before the Board of Appeal to pay the costs.
7 In its response OHIM contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Decision
8 Under Article 113 of the Rules of Procedure, the General Court may at any time, of its own motion, after hearing the parties, decide whether there exists any absolute bar to proceeding with an action. It must give its decision in accordance with Article 114(3) and (4) of those rules.
9 In accordance with Article 114(3) of the Rules of Procedure the remainder of the proceedings are to be oral unless the Court otherwise decides. In the present case, the Court considers that it has sufficient information from the documents before it and decides that there is no need to open the oral procedure.
10 Under the first, third and fourth paragraphs of Article 19 of the Statute of the Court of Justice, applicable to the General Court pursuant to Article 53 of that statute:
‘The Member States and the institutions of the Union shall be represented before the Court of Justice by an agent appointed for each case; the agent may be assisted by an adviser or by a lawyer.
…
Other parties must be represented by a lawyer.
Only a lawyer authorised to practise before a court of a Member State or of another State which is a party to the Agreement on the European Economic Area may represent or assist a party before the Court.’
11 The first paragraph of Article 21 of the Statute of the Court of Justice provides, further:
‘A case shall be brought before the Court of Justice by a written application addressed to the Registrar. The application shall contain the applicant’s name and permanent address and the description of the signatory …’
12 Under the first subparagraph of Article 43(1) of the Rules of Procedure:
‘The original of every pleading must be signed by the party’s agent or lawyer.’
13 According to settled case-law, it is apparent from those provisions and, in particular, from the use of the term ‘represented’ in the third paragraph of Article 19 of the Statute of the Court of Justice that, for the purposes of bringing an action before the General Court, a ‘party’, within the meaning of that article, is not authorised to act itself but must use the services of a third person who must be authorised to practise as a lawyer before a court of a Member State or of another State which is a party to the Agreement on the European Economic Area (order in Case C‑174/96 P Lopes v Court of Justice [1996] ECR I‑6401, paragraph 11; order in Case T‑79/99 Euro-Lex v OHIM (EU-LEX) [1999] ECR II‑3555, paragraph 27; order in Case T‑184/04 Sulvida v Commission [2005] ECR II‑85, paragraph 8; order of 19 November 2009 in Case T‑40/08 EREF v Commission, not published in the ECR, paragraph 25).
14 This requirement to have recourse to a third person is based on a conception of the lawyer’s role as collaborating in the administration of justice and as being required to provide, in full independence and in the overriding interests of justice, such legal assistance as his client needs. That conception reflects legal traditions common to the Member States and is also to be found in the Union legal order as is demonstrated by, precisely, Article 19 of the Statute of the Court of Justice (orders in EU-LEX, cited in paragraph 13 above, paragraph 28, Sulvida v Commission, cited in paragraph 13 above, paragraph 9, and EREF v Commission, cited in paragraph 13 above, paragraph 26).
15 Furthermore, as stated at paragraph 44 of the judgment in Akzo Nobel Chemicals and Akcros Chemicals v Commission, cited in paragraph 4 above, ‘the requirement of independence means the absence of any employment relationship between the lawyer and his client, so that legal professional privilege does not cover exchanges within a company or group with in-house lawyers’.
16 Admittedly, as the applicant emphasises, the judgment in Akzo Nobel Chemicals and Akcros Chemicals v Commission does not concern the question whether in-house lawyers are sufficiently independent to represent their employers before a court. However, in that judgment the Court of Justice interpreted the requirement of independence of the lawyer that emerges from Article 19 of the Statute of the Court of Justice (see, to that effect, Akzo Nobel Chemicals and Akcros Chemicals v Commission, paragraph 42). That article concerns representation before the Courts of the European Union. Accordingly, the interpretation of the requirement of independence of the lawyer in the judgment in Akzo Nobel Chemicals and Akcros Chemicals v Commission is relevant to the issue of representation before the Courts of the European Union. Furthermore, the finding in Akzo Nobel Chemicals and Akcros Chemicals v Commission that ‘the requirement of independence means the absence of any employment relationship between the lawyer and his client’ was cited in the order in EREF v Commission, cited in paragraph 4 above (at paragraph 53), which concerns representation before the Courts of the European Union.
17 In the present case, it should be observed that it is apparent from the case-file, and in particular from the observations of the applicant regarding the question put by the Court, that the applicant’s representative who lodged the action is an in-house lawyer at GlaxoSmithKline Services Unlimited, a company which is part of the same group of companies (GlaxoSmithKline) as the applicant.
18 Thus, the applicant’s representative, being an in-house lawyer for a company which is part of the same group of companies as the applicant, has a lesser degree of independence from the applicant than a lawyer practising in chambers external to his client; he cannot, therefore, be considered a ‘third person’ in the sense of paragraph 11 of the judgment in Lopes v Court of Justice.
19 It follows from the foregoing that, since the application initiating proceedings was not signed by an independent lawyer within the meaning of paragraph 44 of the judgment in Akzo Nobel Chemicals and Akcros Chemicals v Commission, the present action was not brought in compliance with Article 19 and the first paragraph of Article 21 of the Statute of the Court of Justice or the first subparagraph of Article 43(1) of the Rules of Procedure.
20 Accordingly, the action must be dismissed as inadmissible, and it is not necessary to rule on the application for a stay of proceedings made by the applicant.
Costs
21 Under Article 87(2) of the Rules of Procedure, 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, and OHIM has applied for costs, the applicant must be ordered to pay the costs.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. Glaxo Group Ltd shall pay the costs.
Luxembourg, 9 November 2011.