CELEX: 62007TJ0419
Community trade mark
Forfeiture proceedings
Community word mark OKATECH
Partial revocation
Period allowed for appeal
Articles 57 and 77a of Regulation (EC) No 40/94 (now Articles 58 and 80 of Regulation (EC) No 207/2009)
Principles of protection of legitimate expectations and legal certainty
Right to a hearing

Background to the dispute
On 25 August 1998, the applicant, Okalux GmbH, filed an application for registration of a Community trade mark at the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM) under Council Regulation (EC) No 40/94 of on the Community trade mark (
OJ 1994 L 11, p. 1
), as amended (replaced by Council Regulation (EC) No 207/2009 of on the Community trade mark (
OJ 2009 L 78, p. 1
)). The mark in respect of which registration was sought is the word sign OKATECH. The goods and services in respect of which registration was sought are in Classes 6, 19 and 42 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of , as revised and amended. The mark was registered on .
On 16 December 2005, the intervener, Messe Düsseldorf GmbH, filed an application for partial revocation of the word mark OKATECH on the basis of Article 50(1)(a) of Regulation No 40/94 (now Article 51(1)(a) of Regulation No 207/2009), submitting that the trade mark had not been put to genuine use for a continuous period of five years. That application was limited to the services designated, namely, those in Class 42 of the Nice Agreement corresponding to the description ‘architecture, design’.
By decision of 21 December 2006, notified on the same day, the Cancellation Division allowed the intervener’s application for partial revocation and ordered each party to bear its own costs.
Following a request by the intervener, the Cancellation Division, by letter of 6 February 2007, informed the parties in the following terms of its intention, pursuant to Article 77a of Regulation No 40/94 (now Article 80 of Regulation No 207/2009), to revoke its decision:
‘You are hereby informed that the Cancellation Division intends to revoke its decision taken on [21]/12/2006 in the abovementioned proceedings …
The reason for the intended revocation is that the decision contains an obvious procedural error attributable to [OHIM]. In the decision it was held, by error, that each party would bear its own costs, even though the [intervener] succeeded in full in his request, i.e. the partial revocation of the [contested Community trade mark] for the aforementioned services.
Therefore, the Cancellation Division shall revoke its decision in accordance with Article 77a [of Regulation No 40/94] and eventually correct its decision, determining that the [Community trade mark] proprietor has to pay the costs and fees incurred by the [intervener] in the proceedings.
You are allowed a non-extendible period of 1 month upon receipt of this notification to submit your comments in reply.
As soon as [OHIM] receives your eventual comments, it will revoke its decision, in respect of the determination of costs, and take a new decision.’
On 7 February 2007, the applicant contacted OHIM by telephone in order to ask about the next step in the procedure and the time-limits for bringing appeals.
On 5 March 2007, the applicant submitted its observations further to the letter of the Cancellation Division of .
By decision of 21 March 2007, the Cancellation Division revoked its decision of solely with regard to the fixing of costs, pursuant to Article 77a of Regulation No 40/94 and Rule 53a of Commission Regulation (EC) No 2868/95 of implementing Regulation No 40/94 (
OJ 1995 L 303, p. 1
). It decided that the applicant should bear the costs incurred by the intervener in the proceedings which gave rise to the decision of . The Cancellation Division found that its decision of contained an obvious procedural error attributable to OHIM, since it had decided, in error, that each party should bear its own costs, although the intervener had succeeded in its claims. It also noted, in its decision of , that the parties had been informed of that revocation by letter of and requested to submit their observations, that the applicant’s observations of did not relate to the question of costs and that the intervener had not submitted any observations.
On 16 May 2007, the applicant filed an appeal at OHIM, under Articles 57 to 62 of Regulation No 40/94 (now Articles 58 to 64 of Regulation No 207/2009), against the decision of , in which it submitted that it had demonstrated genuine use of its trade mark OKATECH in respect of the services in question and, consequently, claimed that the decision of the Cancellation Division of should be annulled.
By letter of 30 May 2007, OHIM confirmed receipt of the applicant’s appeal and, by letter of the same date, informed the intervener of the existence of that appeal. The intervener submitted its observations on .
By a second letter of 30 May 2007, sent by fax on , OHIM informed the applicant of the entry in the register of the partial revocation of its trade mark OKATECH. On , the applicant’s representative sent a letter to OHIM summarising the telephone discussion of regarding the time-limits for bringing appeals (see paragraph 5 above) and pointed out the existence of its appeal of , claiming that the registration of the partial revocation should be cancelled until a decision on the application for partial revocation of took effect.
By letter of 19 June 2007, OHIM informed the applicant that, inter alia, its appeal of had been assigned to the Second Board of Appeal, which would rule on its admissibility. By letters of 3 and , the applicant submitted observations to OHIM. In its letter of , it complains, inter alia, of breach of Article 60a of Regulation No 40/94 (now Article 62 of Regulation No 207/2009), the fact that the letter of was not sent to its representative but directly to itself, the fact that a partial revocation of the decision was contrary to Article 77a of Regulation No 40/94 and the fact that the letter of , announcing the revocation, stated that a fresh decision was to be adopted. In its letter of , the applicant emphasises the expression ‘and take a new decision’ used in the letter of and asserts that the decision on costs could not be the subject of a separate appeal.
By decision of 3 September 2007, notified to the applicant on (‘the contested decision’), the Second Board of Appeal of OHIM dismissed the appeal as inadmissible. First of all, it noted that that appeal, which challenged the decision of declaring partial revocation, had not been filed within the period of two months laid down in Article 59 of Regulation No 40/94 (now Article 60 of Regulation No 207/2009) and that the statement setting out the grounds of appeal had been lodged after the expiry of the time-limit of four months, laid down in Rule 49(1) of Regulation No 2868/95. Next, the Board of Appeal held that the decision of the Cancellation Division of had revoked only that part of the decision of relating to costs and that, after , the part concerning the substance could no longer be the subject of an appeal.
Forms of order sought by the parties
The applicant claims that the Court should:
—
annul the contested decision;
—
reject the application for partial revocation of the Community trade mark OKATECH;
—
in the alternative, remit the case back to the Cancellation Division of OHIM for decision on the appeal of 16 May 2007;
—
order OHIM or the intervener to pay the costs, including the costs of the main proceedings.
OHIM and the intervener contend that the Court should:
—
dismiss the action;
—
order the applicant to pay the costs.
Law
Admissibility of certain heads of claim
Arguments of the parties
OHIM submits that the applicant’s second head of claim, seeking rejection of the application for partial revocation of the Community trade mark, is inadmissible.
In addition, OHIM submits that the applicant’s claim in the alternative infringes Article 130(1) of Regulation No 40/94 (now Article 135(1) of Regulation No 207/2009), pursuant to which the Boards of Appeal are responsible for deciding on appeals.
Finally, OHIM submits that the applicant’s claim with regard to the costs incurred in the proceedings at first instance before OHIM is inadmissible.
The applicant has not submitted any observations in that regard.
Findings of the Court
The applicant’s second head of claim, that the Court should reject the application for partial revocation of its Community trade mark, and its claim in the alternative, that the case should be remitted to the Cancellation Division for a decision on its appeal, can be interpreted as seeking, in essence, an order that OHIM reject the application for revocation of the trade mark. In accordance with Article 63(6) of Regulation No 40/94 (now Article 65(6) of Regulation No 207/2009), OHIM is to be required to take the necessary measures to comply with the judgments of the Community Courts. Accordingly, the Court of First Instance is not entitled to issue directions to OHIM (Case
T-331/99
Mitsubishi HiTec Paper Bielefeld
v
OHIM (Giroform)
[2001] ECR II-433
, paragraph 33; Case
T-34/00
Eurocool Logistik
v
OHIM (EUROCOOL)
[2002] ECR II-683
, paragraph 12; and Case
T-388/00
Institut für Lernsysteme
v
OHIM
—
Educational Services (ELS)
[2002] ECR II-4301
, paragraph 19).
Furthermore, if those claims were to be interpreted as seeking the Court’s alteration of the contested decision, it must be noted that, although Article 63(3) of Regulation No 40/94 (now Article 65(3) of Regulation No 207/2009) authorises the Court to alter the decisions of the Boards of Appeal, that possibility is, in principle, limited to situations in which the case has reached a stage appropriate for judicial adjudication. In the present case, the Board of Appeal did not consider either the facts and the evidence at issue with regard to the partial revocation of the trade mark OKATECH, or the arguments advanced in that regard by the applicant. Alteration of the contested decision would mean that the Court is deciding for the first time on the substance of the claims on which the Board of Appeal had failed to rule. Such a determination does not, however, fall within the jurisdiction of the Court as laid down in Article 63(2) and (3) of Regulation No 40/94 (now Article 65(2) and (3) of Regulation No 207/2009) (Case
T-85/07
Gabel Industria Tessile
v
OHIM
—
Creaciones Garel (GABEL)
[2008] ECR II-823
, paragraph 28).
It follows that the applicant’s second head of claim and claim in the alternative are inadmissible.
Lastly, the applicant seeks an order that OHIM pay the costs, including those relating to the main proceedings. OHIM contends that that claim is inadmissible with regard to the costs incurred in the proceedings at first instance before it.
Under Article 136(2) of the Rules of Procedure of the Court of First Instance, ‘[c]osts necessarily incurred by the parties for the purposes of the proceedings before the Board of Appeal … shall be regarded as recoverable costs’. It follows that the costs incurred in respect of proceedings before the Cancellation Division cannot be regarded as recoverable costs (see, to that effect, Case
T-164/03
Ampafrance
v
OHIM
—
Johnson & Johnson (monBeBé)
[2005] ECR II-1401
, paragraph 27).
Accordingly, that head of claim must be rejected as inadmissible inasmuch as it relates to the costs incurred in respect of the proceedings before the Cancellation Division.
Substance
In support of its action, the applicant raises, in essence, five pleas in law, alleging, firstly, infringement of Articles 57 and 77a of Regulation No 40/94; secondly, breach of the principles of the protection of legitimate expectations and legal certainty; thirdly, breach of the right to be heard; fourthly, the existence of procedural irregularities; and, fifthly, that the partial revocation of the trade mark is unfounded.
The first plea, alleging infringement of Articles 57 and 77a of Regulation No 40/94
— Arguments of the parties
The applicant submits that the revocation proceedings were closed only by the decision of 21 March 2007, since that of could not be challenged in isolation under Article 57(2) of Regulation No 40/94 (now Article 58(2) of Regulation No 207/2009). Moreover, Article 77a of Regulation No 40/94 does not provide for the possibility of partially revoking a single decision.
OHIM and the intervener contest the applicant’s arguments.
— Findings of the Court
Article 57(1) of Regulation No 40/94 (now Article 58(1) of Regulation No 207/2009) provides that an appeal is to lie from decisions of the Cancellation Divisions and that that appeal is to have suspensive effect.
Article 59 of Regulation No 40/94 provides that notice of appeal against a decision of OHIM must be filed within two months after the date of notification of the decision.
In the present case, by decision of 21 December 2006, the Cancellation Division upheld the intervener’s application for partial revocation of the applicant’s trade mark and ordered each party to bear its own costs. That decision thus closed the proceedings before the Cancellation Division. It is therefore a decision against which an appeal lay on the conditions set out in the articles cited above, as that decision expressly states.
The letter of 6 February 2007, by which the Cancellation Division informed the parties of its intention to revoke that decision in relation to the award of costs, does not in any way alter the starting point of the period within which an appeal may be brought, expressly referred to in the decision of .
That letter states (see paragraph 4 above):
‘[I]t was held, by error, that each party would bear its own costs, even though the [intervener] succeeded in full in his request, i.e. the partial revocation of the [contested Community trade mark] for the aforementioned services.
Therefore, the Cancellation Division shall revoke its decision in accordance with Article 77a [of Regulation No 40/94] and eventually correct its decision, determining that the [Community trade mark] proprietor has to pay the costs and fees incurred by the [intervener] in the proceedings.
…
As soon as [OHIM] receives your eventual comments, it will revoke its decision, in respect of the determination of costs, and take a new decision.’
It is apparent from the terms of that letter that the revocation of the decision concerned only the award of costs and that the decision on the partial revocation of the trade mark was not affected by the revocation announced, notwithstanding the expression ‘new decision’ used at the end of the letter. What is more, re-examination of the substantive question of the partial revocation of the trade mark, or an alteration of the decision taken in that regard, can be carried out only by the Board of Appeal and not on the basis of Article 77a of Regulation No 40/94.
The decision of 21 December 2006 thus constitutes an act which adversely affects the applicant. Since the applicant wished to contest that decision relating to the partial revocation of its trade mark, it should have filed an appeal within the period of two months laid down in Article 59 of Regulation No 40/94 and expressly referred to in that decision. A different interpretation would amount to circumventing the mandatory time-limits laid down in Regulation No 40/94.
Accordingly, the appeal filed on 16 May 2007 before the Board of Appeal, contesting the decision of partial revocation of , must be regarded as out of time.
The applicant’s argument alleging that the decision of 21 December 2006 could not be partially revoked cannot call that conclusion into question.
First of all it must be noted that, although Article 77a of Regulation No 40/94 does not expressly provide for partial revocation of a decision, the wording of that provision does not exclude it. In addition, Rule 53a of Regulation No 2868/95 provides that, before undertaking revocation, OHIM ‘shall inform the party affected about the intended revocation’. The affected party may submit observations ‘on the intended revocation’ and, if the affected party does not agree to the revocation, OHIM is to take a decision ‘on the revocation’. The applicable procedure thus permits revocation, as necessary, to be limited to one part of the decision, provided that the
audi alteram partem
principle is respected. Such was indeed the case here, since the applicant, informed by the letter of 6 February 2007 of the intended revocation, its reasons and its purpose, was able to submit its observations, which it did on (see paragraph 6 above). In that regard, it is irrelevant that those observations did not relate to the question of costs (see paragraph 7 above).
In the present case, the award of costs, which may be divided, appears, in the decision of the Cancellation Division of 21 December 2006, manifestly incorrect, a matter not contested by the applicant. Since the intervener had been entirely successful in its application for the partial revocation of the trade mark, the applicant should have been ordered to pay the costs pursuant to Article 81(1) of Regulation No 40/94 (now Article 85(1) of Regulation No 207/2009), and the Cancellation Division did not have a discretion in that regard.
Lastly, an interpretation which admits of the possibility of partial revocation of decisions accords with the spirit of Regulations No 40/94 and No 2868/95, which provide for the possibility of correcting OHIM decisions before the dispute is decided on appeal, inter alia in Article 60a of Regulation No 40/94, concerning revision, Rule 53 of Regulation No 2868/95, concerning correction of errors, and Rule 53a of Regulation No 2868/95, concerning revocation.
In the light of the foregoing, it must be accepted that it was possible for the revocation of the decision of 21 December 2006 to be only partial, subject to compliance with the procedural rules and general principles of law. Accordingly, the time-limit for bringing an appeal against the decision of , which expired on , could not be reopened by the revocation of the decision in respect of the award of costs.
Therefore, the Board of Appeal did not infringe Articles 57 and 77a of Regulation No 40/94 by dismissing the appeal as out of time.
Furthermore, even if partial revocation of a decision were not possible, as the applicant submits, and the second decision of 21 March 2007 were unlawful, the lawfulness of the first decision of was still not challenged within the time-limit for filing an appeal.
Accordingly, the first plea in law must be rejected.
The second plea, alleging breach of the principles of the protection of legitimate expectations and legal certainty
— Arguments of the parties
The applicant submits that its analysis of the time-limits for filing an appeal was confirmed by an OHIM employee, who told it on 7 February 2007 that the period for filing an appeal would start to run again on adoption of a fresh decision. Consequently, it alleges breach of the principles of the protection of legitimate expectations and legal certainty under Article 79 of Regulation No 40/94 (now Article 83 of Regulation No 207/2009).
OHIM contests the applicant’s arguments.
— Findings of the Court
The right to rely on the principle of the protection of legitimate expectations, which constitutes a general principle of Community law, extends to any individual in a situation where the Community administration, by giving him precise assurances, has caused him to entertain expectations which are justified. In whatever form it is given, information which is precise, unconditional and consistent and comes from authorised and reliable sources constitutes such assurances. However, a person may not plead breach of the principle unless he has been given precise assurances by the administration (Joined Cases
C-182/03 and C-217/03
Belgium and Forum 187
v
Commission
[2006] ECR I-5479
, paragraph 147; judgment of 5 April 2006 in Case
T-388/04
Kachakil Amar
v
OHIM (Longitudinal line ending in a triangle)
, not published in the ECR, paragraph 26; and Case T-271/04
Citymo
v
Commission
[2007] ECR II-1375
, paragraphs 108 and 138).
In the present case, the applicant submits that an OHIM staff member assured it by telephone that a fresh decision was to be adopted in respect of costs and that a new period for filing an appeal would start to run. In that regard, it produces, first, a handwritten note, dated 7 February 2007, which it drafted and which summarises its telephone discussion of that date and, second, its letter of sent to OHIM (see paragraph 10 above), referring to that telephone conversation of . OHIM does not dispute that the telephone conversation of took place and asserted at the hearing that it was a reaction to the letter of which related only to the intended fresh decision on costs.
The complaint alleging breach of the principle of the protection of legitimate expectations must, however, be rejected in the present case.
Firstly, the decision of 21 December 2006 constitutes an act having adverse effects, about which there is no doubt that it is subject to appeal and which, moreover, expressly referred to the possibility of an appeal and the time-limit applicable, which is mandatory.
Secondly, the letter of 6 February 2007, announcing the revocation of the decision of , constitutes precise information from an authorised and reliable source, from which it is apparent that the revocation was to be limited to the award of costs (see paragraph 4 above). The limited scope of the revocation announced was therefore clearly apparent from the very terms of that letter and, in the light of that letter as a whole, that conclusion is not called into question by the final phrase of the letter, according to which the Cancellation Division would ‘revoke its decision, in respect of the determination of costs, and take a new decision’.
Having regard to those factors, the telephone conversation of 7 February 2007, as related by the applicant, does not appear to have contained precise, unconditional and consistent information, within the meaning of the case-law cited in paragraph 46 above, capable of forming the basis of a legitimate expectation in the fact that a new period for filing an appeal against the decision of partial revocation of the trade mark would start to run with effect from the decision to be adopted, partially revoking the decision of .
Thirdly, in order to be able to rely on the principle of the protection of legitimate expectations so as to avoid being time-barred as a result of the expiry of the time-limit for bringing an appeal, it is apparent from case-law that an applicant must be able to show expectations based on specific assurances by the Community administration or conduct by that administration such as to give rise to pardonable confusion in the mind of a party acting in good faith and with all the diligence required of a normally informed operator (see, to that effect, order in Case C-44/00 P
Sodima
v
Commission
[2000] ECR I-11231, paragraph 50).
In the present case, having regard to the mandatory nature of the time-limits for filing an appeal and in the light of the reasons set out in the letter of 6 February 2007, the telephone conversation with OHIM, even if it were such as to give rise to some confusion on the part of the applicant, cannot, nevertheless, permit it to avoid being time-barred as a result of the expiry of the time-limit laid down for challenging the decision of . The applicant, which did not ask OHIM for written confirmation of the content of that telephone conversation, would have acted with the diligence required of a normally informed operator if it had, even as a precaution, filed an appeal within the time-limit referred to in the decision of , that time-limit being a matter of public policy, so that it is not for the parties to determine it at their own convenience (see, to that effect, order in
Sodima
v
Commission
, paragraph 52 above, paragraph 51).
The complaint alleging breach of the principle of the protection of legitimate expectations must therefore be rejected.
Since no separate argument is raised in support of the complaint alleging breach of the principle of legal certainty, the second plea must be rejected in its entirety as unfounded.
The third plea, alleging breach of the right to be heard
— Arguments of the parties
The applicant complains that the Board of Appeal did not consider its letters of 11 June, 3 and 10 July 2007, with regard to the fact that, in the present case, it was impossible to comply with the time-limit for filing an appeal, and that it failed to rule on the legal view defended by the applicant.
OHIM and the intervener contest the applicant’s arguments.
— Findings of the Court
In accordance with the second sentence of Article 73 of Regulation No 40/94 (now the second sentence of Article 75 of Regulation No 207/2009), decisions of OHIM are to be based only on reasons or evidence on which the parties concerned have had on opportunity to present their comments.
It is apparent from case-law that, although the right to be heard, as enshrined in that provision, extends to all the factual and legal factors and the evidence on which the decision is based, nevertheless it does not apply to the final position which the administration intends to adopt (see, to that effect, Case
T-303/03
Lidl Stiftung
v
OHIM
—
REWE-Zentral (Salvita)
[2005] ECR II-1917
, paragraph 62).
In the present case, with regard to the applicant’s arguments that it was impossible to comply with the time-limit for filing an appeal and that partial revocation of a decision is not possible, raised in essence in its letters sent to OHIM on 11 June 2007 (see paragraph 10 above) and 3 and (see paragraph 11 above), it must be noted that the contested decision refers, in its summary of the facts, not only to the applicant’s notice of appeal of concerning the partial revocation of its trade mark but also to the observations submitted subsequently (paragraph 6 of the contested decision).
The Board of Appeal thus refers to the observations of 11 June, 3 and 10 July 2007, which are the only observations subsequent to the notice of appeal of which were sent by the applicant to OHIM and which were therefore indeed taken into consideration by the Board of Appeal.
Furthermore, the contested decision states that the decision of the Cancellation Division of 21 March 2007 concerned solely ‘the part of the … decision on costs’. It therefore confirms, by implication but necessarily, the possibility of partially revoking the decision of , used by the Cancellation Division, and thereby responds to the applicant’s argument in that regard.
It follows that the applicant has not shown a breach of its right to be heard, with regard in particular to the question of the time-limits for filing an appeal and whether partial revocation of a decision is possible.
Therefore, the third plea must be rejected.
The fourth plea, alleging procedural irregularities
— Arguments of the parties
The applicant alleges breach of Article 60a(4) of Regulation No 40/94 (now Article 62(4) of Regulation No 207/2009) and highlights, in essence, a lack of transparency in the internal working of OHIM. It also submits that OHIM registered the partial removal from the register of the trade mark OKATECH without taking into account its pending appeal, in breach of Article 77a of Regulation No 40/94, and that OHIM notified it of that partial removal from the register directly and not via its representative. Moreover, according to the applicant, although the Board of Appeal took the view that it could declare the applicant’s appeal of 16 May 2007 inadmissible on the ground that it was out of time, it should, in accordance with Rules 49 and 51 of Regulation No 2868/95, have ordered the reimbursement of the appeal fees since they were also paid out of time.
OHIM contests the applicant’s arguments.
— Findings of the Court
Firstly, with regard to the applicant’s complaints alleging various procedural irregularities committed during the proceedings before OHIM, it should be borne in mind that, under Article 63(1) of Regulation No 40/94 (now Article 65(1) of Regulation No 207/2009), actions may be brought before the Community judicature only against decisions of the Boards of Appeal. It must accordingly be held that it is only pleas directed against the decision of the Board of Appeal itself which are admissible in such an action (
Salvita
, paragraph 59 above, paragraph 59).
Even if the procedural irregularities alleged, that is to say, the lack of transparency of the decision-making process and the registration of the partial removal from the register of the trade mark, were established, the applicant’s complaints are not directed against the contested decision of the Board of Appeal.
Those complaints must therefore be rejected as inadmissible.
Secondly, with regard to the complaint alleging breach of Article 60a(4) of Regulation No 40/94, concerning revision of decisions in inter partes cases, it must be borne in mind that the purpose of actions brought before the Court under Article 63(2) of Regulation No 40/94 is to obtain a review of the legality of decisions of the Boards of Appeal. The review must be carried out in the light of the factual and legal context of the dispute as it was brought before the Board of Appeal (see judgment of 11 December 2007 in Case T-10/06
Portela & Companhia
v
OHIM
—
Torrens Cuadrado and Sanz (Bial)
, not published in the ECR, paragraph 61, and the case-law cited). In addition, under Article 135(4) of the Rules of Procedure, the parties’ pleadings may not change the subject-matter of the proceedings before the Board of Appeal (
Bial
, paragraph 62).
In the present case, apart from the fact that the revision procedure under Article 60a of Regulation No 40/94 is not at issue, it must be noted that no such argument was raised before the Board of Appeal.
Accordingly the complaint alleging breach of Article 60a(4) of Regulation No 40/94 is also inadmissible.
Thirdly, with regard to the complaint alleging breach of Rules 49 and 51 of Regulation No 2868/95 and alleging that the contested decision should have ordered reimbursement of the appeal fee also paid out of time, it must be borne in mind that Rule 49(3) of Regulation No 2868/95 provides that ‘[i]f the fee for appeal has been paid after expiry of the period for the filing of appeal pursuant to Article 59 of [Regulation No 40/94], the appeal shall be deemed not to have been filed and the appeal fee shall be refunded to the appellant’.
In the present case, the applicant’s appeal of 16 May 2007 referred expressly to the decision of partial revocation of (see paragraph 8 above) and was filed within the period of two months from that decision. Accordingly, the appeal fee was not paid by the applicant after expiry of the time-limit of two months laid down in Article 59 of Regulation No 40/94.
Moreover, Rule 51(b) of Regulation No 2868/95 provides for reimbursement of the appeal fee where the Board of Appeal allows the appeal and considers such reimbursement equitable by reason of a ‘substantial procedural violation’. That is not the case here since, on the contrary, the Board of Appeal dismissed the applicant’s appeal.
The complaint alleging breach of Rules 49 and 51 of Regulation No 2868/95 must therefore be rejected as unfounded.
Accordingly, the fourth plea in law must be rejected in its entirety as in part inadmissible and in part unfounded.
The fifth plea, alleging that the partial revocation of the trade mark is unfounded
— Arguments of the parties
The applicant submits that it furnished proof of use of the trade mark OKATECH for the services in question and takes the view that the Board of Appeal should have allowed its appeal and annulled the decisions of the Cancellation Division of 21 December 2006 and .
OHIM contends that this plea is inadmissible since only pleas directed against the decision of the Board of Appeal are admissible.
— Findings of the Court
It should be borne in mind that, in the contested decision, the Board of Appeal declared the applicant’s appeal inadmissible and therefore did not rule on the question of the partial revocation of its trade mark.
The Court cannot substitute itself for OHIM in that regard and therefore cannot rule on the applicant’s arguments on that point (judgment of 4 October 2007 in Case T-481/04
Advance Magazine Publishers
v
OHIM
—
Capela & Irmãos (VOGUE)
, not published in the ECR, paragraph 22).
It follows that the fifth plea, since it is put forward in support of an inadmissible head of claim (see paragraphs 19 to 21 above), must be rejected as inadmissible.
It follows from all of the foregoing considerations that the action must be dismissed.
Costs
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, it must be ordered to pay the costs in accordance with the forms of order sought by OHIM and the intervener.

On those grounds,
THE COURT OF FIRST INSTANCE (First Chamber)
hereby:

1.
Dismisses the action;

2.
Orders Okalux GmbH to pay the costs.

Tiili
Dehousse
Wiszniewska-Białecka
Delivered in open court at Luxembourg on 1 July 2009.
[Signatures]
(
*1
)	Language of the case: German.