JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
15 January 2019 (*)
(EU trade mark — Application for the EU figurative mark COMPUTER MARKET — Absolute ground for refusal — Late filing of the notice of appeal — Inadmissibility of the appeal before the Board of Appeal — Article 60 of Regulation (EC) No 207/2009 (now Article 68 of Regulation (EU) 2017/1001) — Rule 49(1) of Regulation (EC) No 2868/95 (now Article 23(1)(b) of Delegated Regulation (EU) 2018/625))
In Case T‑111/17,
Computer Market, established in Sofia (Bulgaria), represented by B. Dimitrova, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by J. Ivanauskas, acting as Agent,
defendant,
ACTION brought against the decision of the Second Board of Appeal of EUIPO of 13 December 2016 (Case R 1778/2016-2), relating to an application for registration of the figurative sign COMPUTER MARKET as an EU trade mark,
THE GENERAL COURT (Fourth Chamber),
composed of H. Kanninen, President, L. Calvo-Sotelo Ibáñez-Martín (Rapporteur) and I. Reine, Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Court Registry on 20 February 2017,
having regard to the response of EUIPO lodged at the Court Registry on 20 November 2017,
having regard to the measures of organisation of procedure of 18 September 2018,
having regard to the written questions from the Court to the applicant and its response to those questions lodged at the Court Registry on 3 October 2018,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following,
Judgment
Background to the dispute
1        On 19 October 2015, the applicant, Computer Market, filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1) (replaced by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1)).
2        Registration as a mark was sought for the following figurative sign:
3        The goods and services in respect of which registration was sought are in Classes 9, 37 and 42 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended.
4        On 26 November 2015, the examiner sent the applicant a letter of provisional refusal of protection, on the ground that the application did not appear to be eligible for registration under Article 7(1)(b) and (c) of Regulation No 207/2009 (now Article 7(1)(b) and (c) of Regulation 2017/1001), in conjunction with Article 7(2) of that regulation (now Article 7(2) of Regulation 2017/1001), in respect of all the goods and services applied for.
5        On 25 January 2016, the applicant responded to the provisional refusal.
6        By decision of 14 April 2016, the application for registration was refused by the examiner in respect of all the goods and services referred to in the application, pursuant to Article 7(1)(b) and (c) of Regulation No 207/2009, read in conjunction with Article 7(2) of that regulation.
7        The decision was notified to the applicant by registered mail on 15 April 2016; however, the letter was returned to EUIPO with the indication ‘non reclamé’ (unclaimed), that is to say that it was not delivered to the addressee.
8        On 18 May 2016, the decision refusing registration of the trade mark applied for was again sent to the applicant by registered mail, and on 11 July 2016 EUIPO received an acknowledgement of receipt confirming that the letter had been duly received.
9        On 27 September 2016, EUIPO received the communication from the applicant entitled ‘Notice of appeal with statement of grounds’. However, the communication contained only a statement of grounds, accompanied by various attachments.
10      On 29 September 2016, the Registry of the Boards of Appeal notified the applicant of the failure to file a notice of appeal by the time limit set, in accordance with Article 60 of Regulation No 207/2009 (now Article 68 of Regulation No 2017/1001), that is on or before 28 July 2016, and of deficiency of payment pursuant to Rule 49(1) of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1) (now Article 23(1)(b) of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018, supplementing Regulation 2017/1001, and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104, p. 1)). EUIPO granted the applicant one month from the date of receipt of the notification in order to remedy those deficiencies.
11      On 29 September 2016, the applicant sent a copy of the order payment dated 26 July 2016.
12      On 5 October 2016, the Registry of the Boards of Appeal acknowledged receipt of the applicant’s communication of 29 September 2016 and informed it that only the deficiency in the payment had been remedied and that no notice of appeal had been received within the appeal period, which expired on 28 July 2016. Therefore the appeal was likely to be deemed inadmissible. The applicant was invited to reply by the deadline stipulated in the notification of 29 September 2016.
13      On 6 October 2016, the applicant submitted a communication in reply with the subject ‘Reply to R425a of: 05/10/2016’. The five pages attached thereto consisted of two electronic communication forms named ‘Communication — Notice of appeal’ and ‘Communication — File evidence of payment’. Those forms dated 26 July 2016 bore the watermark ‘DRAFT’ in the background.
14      On 13 October 2016, the Registry of the Boards of Appeal acknowledged receipt of the applicant’s communication of 6 October 2016. The applicant was informed that the case would be forwarded to the Second Board of Appeal in due time and that the Board would take a decision on the admissibility of the appeal.
15      By decision of 13 December 2016 (‘the contested decision’), the Second Board of Appeal of EUIPO dismissed the appeal as inadmissible.
16      In its decision, the Board of Appeal found that the examiner’s decision to refuse the application for a trade mark was deemed to have been notified to the applicant on 28 May 2016 and that, therefore, the two-month time limit for filing an appeal expired on 28 July 2016.
17      According to the Board of Appeal, the applicant’s communication entitled ‘Notice of appeal with statement of grounds’, which had been received by EUIPO on 27 September 2016, did not contain the notice of appeal but only the statement of grounds and had been submitted outside the relevant time limit for filing the appeal.
18      The Board of Appeal states that on 6 October 2016, the applicant submitted a copy of the communication entitled ‘Notice of appeal’ which was dated 26 July 2016, to which the notice of appeal was attached. However, according to the Board of Appeal, as stated in the communication itself, this was in draft status, which implied that it had not been submitted to EUIPO.
19      In addition, the Board of Appeal states that it had itself carried out a detailed investigation and found no trace of that communication of the applicant recorded by EUIPO.
20      Consequently, the Board of Appeal dismissed the appeal as inadmissible on the ground that it had not been filed by the time limit prescribed, in accordance with Article 60 of Regulation No 207/2009 (now Article 68 of Regulation 2017/1001).
Forms of order sought
21      The applicant claims, in essence, that the Court should annul the contested decision.
22      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
23      First of all, EUIPO, without formally raising a plea of inadmissibility, contends that the application does not meet the requirements of Article 177(1)(e) of the Rules of Procedure of the General Court in that the action does not identify clearly the form of order sought in order to enable the Court to decide the case.
24      In that regard, it must be borne in mind that under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court by virtue of the first paragraph of Article 53 of that Statute, and Article 177(1)(d) of the Rules of Procedure of the General Court, all applications must indicate, in particular, a brief statement of the grounds relied on. The information given must be sufficiently clear and precise to enable the defendant to prepare his defence and the General Court to decide the case. The same considerations also apply to all claims, which must be accompanied by pleas and arguments enabling both the defendant and the Court to assess their validity. Thus, the essential elements of fact and of law on which the action is based must be indicated, at least in summary form, coherently and intelligibly in the application itself. Similar requirements apply where a claim or an argument is relied on in support of a plea in law (judgment of 25 January 2018, SilverTours v EUIPO (billiger-mietwagen.de), T‑866/16, not published, EU:T:2018:32, paragraph 47).
25      In the present case, it must be found that the application itself indicates, sufficiently clearly, that the present action seeks annulment of the decision by which the Board of Appeal found that the applicant’s appeal was inadmissible. It is also apparent from the application that the applicant submits that the Board of Appeal erred in dismissing the appeal as inadmissible since the notice of appeal had been duly submitted by the time limit set. According to the applicant, the Board of Appeal therefore infringed Article 60 of Regulation No 207/2009.
26      The action must, therefore, be declared admissible.
27      In support of its action, the applicant relies on a single plea in law, alleging infringement of Article 60 of Regulation No 207/2009. The applicant submits, in essence, that the notice of appeal was duly filed by the time limit set.
28      It should be pointed out, first of all, as EUIPO notes, that the applicant does not dispute the Board of Appeal’s conclusion that the examiner’s decision to refuse registration of the mark applied for was deemed to have been duly notified on 28 May 2016 and that, therefore, the time limit for filing an appeal was set at 28 July 2016. In addition, the payment of the appeal fee and the submission of the statement of grounds are not in dispute in the context of the present proceedings before the Court.
29      Consequently, the dispute concerns, essentially, the compliance with the obligation to file a notice of appeal by the time limit set.
30      In that regard, it must be pointed out that, in accordance with Article 60 of Regulation No 207/2009, ‘notice of appeal must be filed in writing at [EUIPO] within two months after the date of notification of the decision appealed from’. In addition, ‘the notice shall be deemed to have been filed only when the fee for appeal has been paid’. Lastly, ‘within four months after the date of notification of the decision, a written statement setting out the grounds of appeal must be filed’.
31      Furthermore, Rule 49(1) of Regulation No 2868/95 provides that if the appeal does not comply with Article 60 of Regulation No 207/2009, it must be rejected as inadmissible, unless the deficiencies have been remedied before the relevant time limit laid down in that article has expired.
32      The applicant submits that it duly submitted the notice of appeal electronically on 26 July 2016, that is to say by means of its account in the user area of EUIPO’s website.
33      However, EUIPO states that neither on the given date, nor on any other date before the time limit set, that is 28 July 2016, did it receive the notice of appeal. The first time that the Registry of the Boards of Appeal received a communication from the applicant concerning the present appeal was on 27 September 2016, which contained only a statement of grounds.
34      After being informed by the Registry of the Boards of Appeal that the notice of appeal had not been submitted by the time limit set, the applicant provided, on 6 October 2016, a copy of the communication entitled ‘Notice of appeal’ dated 26 July 2016 with the attached completed form of the notice of appeal.
35      However, it must be held, as correctly found by the Board of Appeal in paragraph 23 of the contested decision, that that evidence could not prove that the notice of appeal had been submitted as claimed by the applicant. Indeed, the communication relied on by the applicant was marked ‘DRAFT’, which seems to indicate that it was not submitted to EUIPO.
36      In addition, it should be noted that by letter of 15 August 2016, EUIPO informed the applicant that it had received, on 28 July 2016, a payment without being able to determine its purpose. That fact confirms that, contrary to the applicant’s claims, the communication of the notice of appeal had not reached EUIPO on 26 July 2016.
37      EUIPO contends that the notice of appeal did not reach it because, after preparing the respective communication, the applicant did not complete the whole process of submitting it to EUIPO.
38      In that regard, EUIPO contends that the process of submitting a notice of appeal electronically, as in place on 26 July 2016, required that a user be logged on in the user area of EUIPO’s website. After selecting a trade mark in respect of which an appeal had to be filed, the user would have been taken to EUIPO’s tool ‘eSearch plus’. There the user had to select the tab ‘Appeals’ and then go to the section ‘Actions and Communications’. Once in that section, the user had to create a communication entitled ‘Notice of Appeal’ or ‘Notice of Appeal with statement of grounds’ and attach to it the actual notice of appeal. After clicking on the button ‘Continue’, the communication would have appeared in ‘Draft’ status and the user would have had the possibility of saving it on his local drive in PDF format or of modifying it. In order to finalise the process the user had to click on the button ‘Complete’ and the communication would have been submitted to EUIPO. According to EUIPO, had such a communication been duly submitted, it would have appeared in the inbox of the user area from where the user would have been able to download it.
39      EUIPO’s arguments must be endorsed.
40      First, it must be pointed out that in order to assist users, the ‘frequently asked questions’ (FAQ) section guiding them through the process of filing a notice of appeal was accessible on EUIPO’s website. In addition, users had the possibility of consulting the instructions regarding the functioning of the user area at the material time.
41      Secondly, the applicant’s explanations provided in its application confirm that the communication containing the notice of appeal was created, but not submitted. Indeed, the applicant does not indicate that it performed the last step in the process for filing, namely clicking on the button ‘Complete’. Consequently, the communication remained a draft.
42      Thirdly, it should be pointed out, as EUIPO notes, that unlike the communication relating to the notice of appeal, dated 26 July 2016, the applicant’s communication containing the statement of grounds of 27 September 2016 is not marked ‘DRAFT’, which confirms that it was duly submitted. As the Board of Appeal noted in paragraphs 7 and 8 of the contested decision, that communication was indeed received by EUIPO on the given date.
43      It should also be pointed out, as the Board of Appeal notes, that even though the draft documents attached might potentially demonstrate that a notice of appeal had been prepared, they are not capable of proving that such a notice was sent to EUIPO within the prescribed period (see, to that effect, judgment of 6 December 2016, Groupe Go Sport v EUIPO — Design Go (GO SPORT), T‑703/15, not published, EU:T:2016:707, paragraph 31). In addition, the applicant fails to explain how those draft documents can prove that such a notice of appeal was submitted on 26 July 2016.
44      Consequently, in the absence of any evidence to the contrary adduced by the applicant, it must be found that the Board of Appeal correctly concluded that the applicant had not sent the notice of appeal on 26 July 2016, and that the notice cannot be considered to have been received by the time limit set and must, therefore, be rejected as inadmissible.
45      That conclusion cannot be called in question by the document lodged by the applicant as Annex 3 to its application, entitled ‘Communication — Notice of appeal’, dated 26 July 2016, since the applicant confirmed, in response to a question from the Court, that it was a copy of the document with the same heading already lodged by it before the Board of Appeal on 6 October 2016, which contained the watermark ‘DRAFT’ in the background.
46      In addition, it must be found, as EUIPO notes, that the applicant could have submitted additional evidence to prove that the notice of appeal had been submitted by the time limit set. Indeed, when a communication has been duly submitted using the user area, it should appear in the user’s inbox. The applicant could, therefore, have submitted a screenshot from its user area to show, if necessary, that the communication containing the notice of appeal had been submitted, which it has failed to do.
47      As regards the applicant’s claims that it had several telephone conversations with EUIPO concerning the electronic procedure in question and was not informed of the need to undertake further action in order to submit its appeal, it suffices to note that there is no evidence on the file in that regard.
48      Lastly, as regards the applicant’s statement that the Registry of the Boards of Appeal accepted the notice of appeal by its communication of 13 October 2016, it is clear from the wording of that communication that the Registry of the Boards of Appeal acknowledged receipt of the applicant’s letter dated 6 October 2016 and informed it that the case would be forwarded to the Second Board of Appeal for it to assess the admissibility of the appeal. Consequently, the communication of 13 October 2016 cannot be considered confirmation that the appeal was admissible.
49      In the light of all the foregoing, the action must be dismissed.
Costs
50      Under Article 134(1) 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 form of order sought by EUIPO.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Computer Market to pay the costs.
Kanninen
Calvo-Sotelo Ibáñez-Martín
Reine
Delivered in open court in Luxembourg on 15 January 2019.
E. Coulon
H. Kanninen
Registrar
President
*      Language of the case: English.