Opinion of the Advocate General — ECLI:EU:C:2011:202
Date: 2011-03-31
Language of the case: Spanish
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary of the Judgment 1. Community trade mark — Filing of a Community trade mark application — Date of filing — Taking into account the calendar day of filing of an application, but not the hour and minute of filing (Council Regulation No 40/94, as amended by Regulation No 1992/2003, Art. 27) 2. Community trade mark — Filing of a Community trade mark application — Date of filing — National and Community trade mark applications filed on the same day (Council Regulation No 40/94, as amended by Regulation No 1992/2003, Art. 27) 1. The term ‘date of filing of a Community trade mark application’ used in Article 27 of Regulation No 40/94 on the Community trade mark, as amended by Regulation No 1992/2003, implies taking account of the calendar day of filing of an application for a Community trade mark, but not of the hour and minute of filing. The obligation to state the date or the day, depending on the language version, does not imply, according to the ordinary meaning, that it is necessary to state the hour or, a fortiori, the minute. Therefore, there being no express reference in Article 27 of Regulation No 40/94 to the hour and minute of filing of a Community trade mark application, it is apparent that that information was not considered by the Community legislature to be necessary in order to determine the time of filing of a Community trade mark application and hence its priority over another trade mark application. That interpretation also follows from the context of Article 27 of Regulation No 40/94. In particular, Rule 5 of Regulation No 2868/95 implementing Regulation No 40/94, which details the formalities to be completed by the Office for Harmonisation in the Internal Market (trade marks and designs) (OHIM), by the central industrial property office of a Member State or by the Benelux Trade Mark Office upon the filing of an application for a Community trade mark, establishes only the obligation to indicate in the application the date of receipt of that application and not the hour and minute. If the Community legislature had considered that the hour and minute of filing of a Community trade mark application had to be taken into account as constituent elements of the ‘date of filing’ of that application within the meaning of Article 27 of Regulation No 40/94, that information would have had to be included in Regulation No 2868/95. (see paras 47-49, 54) 2. Article 27 of Regulation No 40/94 on the Community trade mark, as amended by Regulation No 1992/2003, must be interpreted as precluding account being taken not only of the day but also of the hour and minute of filing of an application for a Community trade mark with the Office for Harmonisation in the Internal Market (trade marks and designs) (OHIM) for the purposes of establishing that trade mark’s priority over a national trade mark filed on the same day, although, according to the national legislation governing the registration of national trade marks, the hour and minute of filing are relevant in that regard. As an autonomous system, the Community trade mark regime has its own rules relating to the date of filing of an application for a Community trade mark and does not make a renvoi to provisions of national law. Accordingly, the date of filing of an application for a Community trade mark may be established only according to the rules of European Union law, the approaches adopted by the law of the Member States not having any effect in that regard. Indeed, it follows from Article 14 read in conjunction with Article 97 of Regulation No 40/94 that the applicability of national law is limited to questions which fall outside the scope of that regulation. (see paras 56-58, 63, operative part)