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Language of document : ECLI:EU:T:2011:90

Case T-50/09

Ifemy’s Holding GmbH

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

(Community trade mark – Opposition proceedings – Application for Community figurative mark Dada & Co. kids – Earlier national word mark DADA – Relative ground for refusal – Absence of genuine use of the earlier mark – Article 43(2) and (3) of Regulation (EC) No 40/94 (now Article 42(2) and (3) of Regulation (EC) No 207/2009))

Summary of the Judgment

1. Community trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark – Time-limit set by the Office – Mandatory nature

(Commission Regulation No 2868/95, Art. 1, Rule 22(2))

2. Community trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark – Time-limit set by the Office – Date on which proof provided

(Commission Regulation No 2868/95, Art. 1, Rule 22(2))

3. Community trade mark – Proceedings before OHIM bodies – Transmission of communications to the Office – Transmission by fax – Incomplete or illegible communication

(Commission Regulation No 2868/95, Art. 1, Rule 80(2))

1. It follows from the wording of Rule 22(2) of Regulation No 2868/95, implementing Regulation No 40/94 on the Community trade mark, that the time‑limit which it lays down is a strict time-limit which means that the Office for Harmonisation in the Internal Market (Trade Marks and Designs) cannot take account of evidence that is submitted late.

Such a time-limit, like the periods for lodging complaints and bringing actions, is a matter of public policy and cannot be left to the discretion of the parties or the Court, which must ascertain, of its own motion if need be, whether it has been complied with. That time-limit meets the requirement of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice.

(see paras 63-64)

2. Rule 22(2) of Regulation No 2868/95, implementing Regulation No 40/94 on the Community trade mark, must be interpreted as meaning that proof is ‘furnished’ not when it is sent to the Office for Harmonisation in the Internal Market (Trade Marks and Designs) but when it reaches it.

First, that interpretation is borne out, in terms of their literal meaning, by the use of the two verbs ‘to furnish’ and ‘to provide’ proof to the Office in the wording of Rule 22(2) of Regulation No 2868/95. Both of those verbs convey the idea of moving or transferring the proof to the place at which the Office is located, the emphasis thus being placed on the result of the action rather than on its origin.

Second, although neither Regulation No 40/94 on the Community trade mark nor Regulation No 2868/95 contains a provision equivalent to Article 43(3) of the Rules of Procedure of the General Court – which provides that in the reckoning of time-limits for taking steps in proceedings only the date of lodgment at the Registry is to be taken into account – the interpretation above is consistent with the overall scheme of both those regulations, in which numerous specific provisions lay down that, in the reckoning of time-limits for taking steps in proceedings, the date of a document is the date on which it is received and not that on which it is sent. This is the case, for example, with Rule 70(2) of Regulation No 2868/95, which provides that where a procedural step is notified, the ‘receipt’ of the document notified is the relevant event. The same is also true of Rule 72 of Regulation No 2868/95, which provides that if a time-limit expires on a day on which the Office is not open for ‘receipt’ of documents, the time-limit is to be extended until the first day thereafter on which the Office is open for ‘receipt’ of documents, and of Rule 80(2) of Regulation No 2868/95, which provides that the date of the ‘receipt’ of the retransmission or of the original of a document is to be deemed to be the date of the ‘receipt’ of the original communication where the latter proved deficient.

Third, in the context of Community staff cases, a similar solution has been identified in settled case-law in which Article 90(2) of the Staff Regulations of Officials of the European Communities has been interpreted as meaning that a complaint is ‘lodged’ not when it sent to the institution but when it ‘reaches’ it.

Fourth, that interpretation is the most apt to meet the requirement of legal certainty. It ensures a clear determination and meticulous observance of the starting and end points of the period referred to in Rule 22(2) of Regulation No 2868/95.

Fifth, that interpretation also meets the requirement to avoid any discrimination or arbitrary treatment in the administration of justice, in that it makes possible the same methods of calculating time-limits for all the parties, irrespective of their residence or nationality.

(see paras 65-70)

3. The purpose of Rule 80(2) of Regulation No 2868/95, amending Regulation No 40/94 on the Community trade mark, is to allow persons sending communications to the Office for Harmonisation in the Internal Market (Trade Marks and Designs) by fax to retransmit their documents or to provide the originals to the Office after the expiry of the opposition period where one of the situations mentioned by the rules arises, so that they are able to remedy deficiencies resulting from such situations.

The provision therefore governs situations in which an objective factor relating to particular or abnormal technical circumstances, outside the control of the party in question, prevents the latter from communicating documents by fax in a satisfactory manner.

On the other hand, Rule 80(2) of Regulation No 2868/95 does not govern situations in which the incomplete or illegible nature of the communication by fax is intended by the sender, who deliberately chooses not to make a complete and legible transmission although technically able to do so.

It also follows that Rule 80(2) of Regulation No 2868/95 presupposes that the documents whose communication by fax was incomplete or illegible are identical to the documents communicated at a later stage as originals or by fax at the Office’s request, and therefore precludes any correction, amendment or addition of new information on that occasion. Any other interpretation would enable the parties to a procedure before the Office to circumvent the time-limits set for them, which is clearly not the objective pursued by Rule 80(2).

(see paras 43-46)