Case T-279/09

Antonino Aiello

v

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

(Community trade mark — Opposition proceedings — Notification of the opposing party’s pleading before the Board of Appeal — Rules 50(1), 20(2) and 67(1) of Regulation (EC) No 2868/95 — Rights of the defence)

Summary of the Judgment

1.      Community trade mark — Appeals procedure — Action before the European Union Courts — Jurisdiction of the General Court — Direction issued to the Office — Not permissible

(Council Regulation No 207/2009, Art. 65(6))

2.      Community trade mark — Procedural provisions — Notification — Notification of the opposing party’s pleading before the Board of Appeal — Notification to the appointed or common representative

(Commission Regulation No 2868/95, Art. 1, Rules 20(2), 50(1), 67(1), 75(1), and 77)

3.      Community trade mark — Procedural provisions — Decisions of the Office — Observance of the rights of the defence — Scope of the principle

Council Regulation No 207/2009, Art. 75)

1.      See the text of the decision.

(see para. 17)

2.      It follows from a combined reading of Rules 50(1) and 20(2) of Regulation No 2868/95 implementing Regulation No 40/94 on the Community trade mark that, in the proceedings before the Board of Appeal, the Office for Harmonisation in the Internal Market (Trade Marks and Designs) communicates the submissions of the opposing party to the applicant for a Community trade mark, who has brought the appeal before the Board of Appeal, and invites him to file his observations.

Under Rule 67(1) of Regulation No 2868/85, if a representative has been appointed or where the applicant first named in a common application is considered to be the common representative pursuant to Rule 75(1), notifications shall be addressed to that appointed or common representative. Therefore, the Office cannot rely on the alleged notification of the opposing party’s pleading to the applicant himself in order to justify the failure to notify the applicant’s representative.

Moreover, it cannot be inferred from Rule 77 of Regulation No 2868/95, under which any notification addressed to a representative has the same effect as if it had been addressed to the represented person, that notification to the represented person is the same as notification to the representative. If that were the case, Rule 67 of that regulation would serve no purpose.

(see paras 24, 29, 31)

3.      See the text of the decision.

(see paras 33, 34)