Judgment — ECLI:EU:T:2005:191
Date: 2005-05-31
Language of the case: French
Court formation: First Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Trade marks;Intellectual, industrial and commercial property
Concepts: Actions before the Community Courts;Appeals before the Boards of Appeal
Procedure: Action for annulment - unfounded;Action for annulment - inadmissible
Origin: Italy

Summary of the Judgment 1. Community trade mark – Appeals procedure – Actions before the Community judicature – Jurisdiction of the Court of First Instance – Review of the legality of decisions of the Boards of Appeal with regard to the issues of law raised before them – Examination of the Court’s own motion as to whether the appeal before the Board of Appeal and the action before the Court of First Instance are based on the same subject-matter (Council Regulation No 40/94, Art. 63) 2. Community trade mark – Appeals procedure – Time-limit and form of appeal – To be brought in writing and within a period of two months – Payment of the amount corresponding to the fee for appeal – Act insufficient of itself (Council Regulation No 40/94, Art. 59) 1. The purpose of actions before the Court under Article 63 of Regulation No 40/94 on the Community trade mark is to obtain a review of the legality of decisions of the Boards of Appeal of the Office for Harmonisation within the Internal Market (Trade Marks and Designs). While the Court, under Article 63(3) of Regulation No 40/94, ‘has jurisdiction to annul or to alter the contested decision’, that paragraph must be construed in the light of Article 63(2), which provides that an ‘action may be brought on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaty, of this Regulation or of any rule of law relating to their application or misuse of power’, and in the context of Articles 229 EC and 230 EC. The Court’s review of the legality of a decision by a Board of Appeal must therefore be carried out with regard to the issues of law raised before the Board of Appeal. The question whether the appeal before the Board of Appeal and the action brought before the Court are based on the same subject-matter is one of public policy, which falls to be examined of the Court’s own motion. (see paras 25, 28) 2. Article 59 of Regulation No 40/94 on the Community trade mark provides that notice of appeal must be filed in writing at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) within two months of the date of notification of the decision appealed from. While that article provides that the appeal is deemed to be filed only when the fee for appeal has been paid, the mere payment of the corresponding amount cannot be considered to be equivalent to the notice required by the article. There is, in that regard, no duty on the Office and, more particularly, on its Accounting Department to alert potential appellants to a Board of Appeal to the consequences of failure to comply with the formalities laid down by Regulation No 40/94. (see paras 56, 58-59)