Order — ECLI:EU:T:2015:245
Date: 2015-04-21
Language of the case: English
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded;Action for annulment - inadmissible
Origin: Romania

summary of the pleas in law on which the application is based. The information given must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information (see judgment of 27 September 2005 in Cargo Partner v OHIM (CARGO PARTNER), T‑123/04, ECR, EU:T:2005:340, paragraph 26 and the case-law cited). In order to ensure legal certainty and the sound administration of justice, if an action is to be admissible, the essential facts and law on which it is based must be apparent from the text of the application itself, even if only stated briefly, provided the statement is coherent and comprehensible (judgment of 14 May 1998 in Enso Española v Commission, T‑348/94, ECR, EU:T:1998:102, paragraph 143). Although specific points in the text of the application can be supported and completed by references to specific passages in the documents attached, a general reference to other documents cannot compensate for the lack of essential information in the application itself, even if those documents are attached to the application (see, to that effect, order of 29 November 1993 in Koelman v Commission, T‑56/92, ECR, EU:T:1993:105, paragraph 21). 31 Furthermore, the application must specify the grounds on which the action is based. Therefore, the mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure (see judgment of 12 December 2002 in eCopy v OHIM (ECOPY), T‑247/01, ECR, EU:T:2002:319, paragraph 15 and the case-law cited). Lastly, it is for the applicant and its lawyer to set out the factual and legal grounds on which the action is based and not for the Court to do their work by trying to locate and identify, from all of the evidence to which the application makes general reference, the information which may support the claims formulated in the application (see, to that effect, order in Koelman v Commission, cited in paragraph 30 above, EU:T:1993:105, paragraph 23). 32 It is in the light of the foregoing considerations that the present action must be examined. 33 In the present case, under the heading ‘Pleas in Law’, the applicant raises a series of infringements, which concern, in part, essential procedural requirements and, in part, procedural rules. 34 The application contains, under the heading ‘Principal Arguments’, the arguments relied on by the applicant in support of the alleged infringements. The Court finds, however, that — for the most part — those arguments do not satisfy the minimum requirements in Article 44(1)(c) of the Rules of Procedure concerning the conditions for the admissibility of an action, on the ground that they are not sufficiently clear and coherent for the purposes of substantiating those infringements and of assessing whether the allegations are well founded. 35 Most of the applicant’s statements are extremely vague, fail to explain the breach of the principles and provisions relied on in the present case or merely refer to documents submitted before OHIM. 36 In those circumstances, the Court finds that most of the arguments raised by the applicant in support of the alleged infringements must be rejected as manifestly inadmissible on the ground that they lack clarity and coherence and that, consequently, they fail to satisfy the minimum requirements set out in Article 44(1)(c) of the Rules of Procedure. 37 As regards the applicant’s arguments that have been submitted in a form meeting those minimum requirements, the unavoidable conclusion is that they must be rejected as manifestly lacking any foundation in law. 38 That is so, first, in the case of the argument that — contrary to what the Board of Appeal found in paragraph 15 of the contested decision — the documents proving the change of name from SC Unibrand SRL to Real Express SRL were submitted before the expiry of the period for substantiating the opposition. That argument is based on an incorrect reading of paragraph 15 of the contested decision. Contrary to what the applicant claims, the Board of Appeal did not in any way find, in paragraph 15, that the applicant had submitted the documents out of time. It found merely that those documents did not correspond to the required documentation from the administration by which the marks had been registered, on the ground that they did not serve to confirm that the changes of name of the proprietor of the marks had in fact been registered or that OSIM had found the requests for a change of name in respect of the proprietor of the marks to be admissible. 39 Second, the argument, in essence, that OHIM had accepted the evidence of the change of name from SC Unibrand SRL to Real Express SRL, on the ground that it had accepted the opposition fee, must be rejected as being manifestly unfounded. As MIP has observed, the mere fact that OHIM accepted the fee is not, on its own, sufficient for a finding that OHIM accepted that Real Express was the proprietor of the earlier marks. Moreover, there is no basis whatsoever to be found in Regulation No 207/2009 or in Regulation No 2868/95 for such an argument. 40 Third, the arguments that the communication of 2 December 2011 and the notifications of 22 February and 27 March 2012 show that OHIM accepted that the opposition was substantiated by evidence and that the obligation to prove the change of name had been satisfied must be rejected for the same reasons. There is no basis to be found in Regulation No 207/2009 or in Regulation No 2868/95 for such arguments. 41 Fourth, as regards the argument that the proceedings were suspended without the applicant being given the opportunity to make its views known, suffice it to point out, as MIP has done, that OHIM suspended the proceedings, in accordance with Rule 20(7) and Rule 21(2) of Regulation No 2868/95, on account of national proceedings against the opposition marks in Romania. Neither of those rules imposes an obligation on OHIM to hear the parties before suspending the proceedings. 42 Fifth, the argument that the decision of the Opposition Division was given while the proceedings were suspended must also be rejected as manifestly lacking any foundation. Quite apart from the fact that that unsubstantiated claim was not raised before the Board of Appeal, the notification of 23 April 2012, by which Real Express was informed that the opposition would be rejected since it had failed to prove use of the earlier marks relied on in support of its opposition, necessarily implied that the proceedings had been resumed. 43 Sixth, and lastly, as regards the argument, in essence, that OHIM had to take into consideration all the facts, circumstances and evidence, that argument cannot but be rejected as manifestly unfounded. That mere assertion is supposed to establish an infringement of Article 63(2) and Article 64(1) and (2) of Regulation No 207/2009. However, as OHIM correctly states, first, the applicant did have the opportunity to present, before both the Opposition Division and the Board of Appeal, the facts and evidence concerning its entitlement to file the opposition, in accordance with the first provision, and, secondly, it is apparent from paragraphs 15 to 21 of the contested decision that the Board of Appeal did examine the entitlement issue, in accordance with the second provision. 44 For the sake of completeness, the Court points out that, even if that mere assertion ought to have been interpreted as a complaint by the applicant that the Board of Appeal failed to take the fax of 16 July 2012 into account, in disregard of Article 76(2) of Regulation No 207/2009 and Rule 20(1) of Regulation No 2868/95, it would have had to be dismissed for the same reasons as those upheld in the case that gave rise to the judgment of 3 October 2013 in Rintisch v OHIM (C‑120/12 P, ECR, EU:C:2013:638). 45 As was the case in Rintisch v OHIM, cited in paragraph 44 above (EU:C:2013:638), it is true that the Board of Appeal in essence took the view, in paragraphs 18 and 19 of the contested decision, that Rule 20(1) of Regulation No 2868/95 constituted a provision to the contrary for the purposes of Article 76(2) of Regulation No 207/2009 and that, consequently, it had no discretion to take the fax of 16 July 2012 — submitted by the applicant in order to establish ownership of the earlier marks — into account. In so doing, contrary to what OHIM contends for the sake of completeness in its response, the Board of Appeal erred in law. Nevertheless, for the same reasons as those upheld in paragraphs 36 to 41 of the judgment in Rintisch v OHIM, cited in paragraph 44 above (EU:C:2013:638), the Court finds that the grounds set out by the Board of Appeal in paragraph 20 of the contested decision are, in any event, capable of remedying the defect vitiating the contested decision, inasmuch as they permit the inference that the Board of Appeal actually exercised its discretion under Article 76(2) of Regulation No 207/2009, for the purposes of deciding, in a reasoned manner and having regard to all the relevant circumstances, whether it was necessary to take into account the evidence submitted to it late, in order to give its decision. 46 Having regard to all of the foregoing considerations, the action must be dismissed in its entirety as being, in part, manifestly inadmissible and, in part, manifestly lacking any foundation in law, and there is no need to rule on the admissibility of the form of order sought by the applicant that OHIM be ordered to reimburse the appeal fee. Costs 47 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. 48 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 MIP. On those grounds, THE GENERAL COURT (Ninth Chamber) hereby orders: 1. The action is dismissed as being, in part, manifestly inadmissible and, in part, manifestly lacking any foundation in law. 2. Real Express SRL shall pay the costs. Luxembourg 21 April 2015. E. Coulon G. Berardis Registrar President * Language of the case: English.