ORDER OF THE GENERAL COURT (Second Chamber)
9 September 2015(*)
(Community trade mark — Period for bringing an action — Point from which time starts to run — Notification of the Board of Appeal’s decision by fax machine — Receipt of the fax — Lateness — No force majeure or unforeseeable circumstances — Manifest inadmissibility)
In Case T‑633/14,
Monster Energy Company, established in Corona, California (United States), represented by P. Brownlow, Solicitor,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by S. Palmero Cabezas, acting as Agent,
defendant,
ACTION brought against the decision of the First Board of Appeal of OHIM of 11 December 2013 (Case R 1285/2013-1) concerning an application for registration as a Community trade mark of a figurative sign representing a peace symbol,
THE GENERAL COURT (Second Chamber),
composed of M.E. Martins Ribeiro, President, S. Gervasoni and L. Madise (Rapporteur), Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Court Registry on 18 August 2014,
having regard to the request for information sent by the Court to OHIM on 9 October 2014,
having regard to the reply lodged by OHIM at the Court Registry on 27 October 2014,
having regard to the observations on OHIM’s reply lodged by the applicant at the Court Registry on 21 November 2014,
having regard to the response lodged at the Court Registry on 12 December 2014,
makes the following
Order
Background to the dispute
1        On 21 November 2012, the applicant, Monster Energy Company, filed an application for registration of the following figurative sign with the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1):
2        The goods in respect of which registration was sought are in Classes 5, 30 and 32 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.
3        By decision of 8 May 2013, the examiner refused registration of the mark applied for on the basis of Article 7(1)(b) and (2) of Regulation No 207/2009, read in conjunction with Rule 11 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), as amended.
4        On 8 July 2013, the applicant filed a notice of appeal with OHIM, pursuant to Articles 58 to 64 of Regulation No 207/2009, against the examiner’s decision.
5        By decision of 11 December 2013 (‘the contested decision’), the First Board of Appeal of OHIM dismissed the appeal.
6        The contested decision was sent to the applicant by fax machine on 20 December 2013.
7        By fax of 23 June 2014, the applicant claimed that, following a check on the progress of Case 1285/2013-1, it had discovered that the First Board of Appeal of OHIM had adopted a decision dismissing the appeal on 11 December 2013. However, it maintained that that decision had not been notified to it by OHIM. Accordingly, it requested that a new period for bringing an action should begin to run for the purpose of bringing proceedings against the contested decision.
8        By email of 2 July 2014, having received no reply to the fax of 23 June 2014, the applicant renewed its request by filing a complaint with OHIM.
9        By email of 10 July 2014, OHIM replied to that complaint, informing the applicant that the contested decision had been notified to it by fax machine on 20 December 2013.
Forms of order sought
10      The applicant claims that the Court should:
–        annul the contested decision;
–        order OHIM to pay the costs.
11      OHIM contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
12      Article 126 of the Rules of Procedure of the General Court provides that where the action is manifestly inadmissible, the General Court may, without taking further steps in the proceedings, give a decision by reasoned order.
13      In the present case, the Court considers that it has sufficient information from the documents in the file and has decided, pursuant to Article 126 of the Rules of Procedure, to give a decision without taking further steps in the proceedings.
14      OHIM submits that it notified the contested decision to the applicant by fax on 20 December 2013. It maintains that, consequently, since the application was lodged on 18 August 2014, that application is out of time.
15      The applicant disputes the belated nature of the present action. First, it states that it had opted, by letter of 18 December 2013, for a method of notification by electronic means in connection with the proceedings before OHIM, with the result that, in essence, OHIM should have notified the contested decision to it by such means and not by fax. Secondly, it submits that, on account of a technical malfunction, its representative was not, at any time prior to 17 June 2014, informed of the notification of the contested decision by fax of 20 December 2013 or, a fortiori, of the content of that decision.
16      It must be borne in mind that, pursuant to Article 65(5) of Regulation No 207/2009, such an action is to be brought before the General Court within two months of the date of notification of the decision of the Board of Appeal.
17      In order to rule on the admissibility of the present action in the light of the period which the applicant had for bringing it, it is therefore necessary, in the first place, to establish the date on which that decision was notified to the applicant by OHIM.
18      In the present case, in so far as the applicant disputes the method of notification of the contested decision used by OHIM, it must be borne in mind that, according to Rule 68 of Regulation No 2868/95, which is expressly entitled ‘Irregularities in notification’, where a document has reached the addressee, if OHIM is unable to prove that it has been duly notified, or if provisions relating to its notification have not been observed, the document is to be deemed to have been notified on the date established by OHIM as the date of receipt.
19      That provision, taken as a whole, must be construed as affording to OHIM the possibility of establishing the date on which a document reached its addressee, if it is not possible to prove due notification or the provisions relating to its notification have not been observed, and as conferring on that proof the legal effects of due notification (judgment of 19 April 2005 in Success-Marketing v OHIM — Chipita (PAN & CO), T‑380/02 and T‑128/03, ECR, EU:T:2005:133, paragraph 64).
20      Since Rule 68 of Regulation No 2868/95 lays down no formalities for adducing that proof, it may be adduced by means of a fax provided that the conditions for the use of that method of transmission confer probative value on it (judgment in PAN & CO, cited in paragraph 19 above, EU:T:2005:133, paragraph 65).
21      In the present case, it must be determined at the outset whether OHIM has established the date on which the contested decision reached the applicant following its communication by fax of 20 December 2013.
22      Even if OHIM had not complied with the method of communication by electronic means chosen by the applicant on 18 December 2013, since OHIM has established that, as it submits, the contested decision reached the applicant by fax of 20 December 2013, the contested decision must be deemed to have been notified on that date pursuant to Rule 68 of Regulation No 2868/95.
23      The General Court has held that the production, by OHIM, of fax transmission reports which included items conferring probative value on them was sufficient to prove that the fax in question had been received by the addressee. Fax machines are designed so that any transmission or reception problem is reported by an error message which informs the sender of the exact reason for the non-receipt, as communicated to that fax machine by the addressee’s fax machine. Where there is no communication of such a problem, a message indicating effective transmission is generated. Thus, where there has been no error message and there is a transmission report stating the word ‘ok’, the fax sent may be regarded as having been received by the addressee (see order of 22 January 2015 in GEA Group v OHIM (engineering for a better world), T‑488/13, ECR, EU:T:2015:64, paragraph 21 and the case-law cited).
24      In the present case, it must be held that, as is apparent from OHIM’s reply of 27 October 2014, its fax machine’s transmission report, which is dated 20 December 2013 and relates to the notification of the contested decision, bears the word ‘ok’. In those circumstances, it must be held that OHIM has proved to the requisite legal standard that the fax which it sent to the applicant on 20 December 2013 reached the latter on that date and that, therefore, the contested decision, which was reproduced in that fax, was notified to and received by the applicant on 20 December 2013.
25      That finding cannot be altered by the applicant’s other arguments.
26      First, the applicant submits that, in essence, its representative was not in a position, on account of a technical malfunction, to take cognisance of the contested decision, as notified by the fax of 20 December 2013. It must be borne in mind, in that regard, that, to determine the date of receipt of a notification, account should be taken only of the external aspect of the notification, that is to say, whether it was received in a formal manner by the entity addressed, irrespective of whether that entity effectively received and took cognisance of the notification. The notifier is under an obligation to create the conditions necessary for the addressee to effectively take cognisance of the notification, that is to say, an obligation to use best endeavours (which corresponds to the external aspect of the notification) rather than an obligation to interfere in the internal functioning of the entity addressed in order to ensure it has actually taken cognisance of the notification, that is to say, an obligation to achieve a specific result (which corresponds to the internal aspect of the notification) (see order in engineering for a better world, cited in paragraph 23 above, EU:T:2015:64, paragraph 20 and the case-law cited).
27      Secondly, the applicant expresses surprise at observing that the transmission fax report, which is attached as Annex 7 to OHIM’s reply of 27 October 2014, contains the word ‘OK’ as regards the two faxes which OHIM sent to the applicant’s representative for the purposes of notifying the contested decision in the present case as well as in the related Case T‑666/14 Monster Energy Company v OHIM (GREEN BEANS), although the same report contains an error message in respect of the transmission of the faxes sent immediately before and after the abovementioned two faxes were sent.
28      In that regard, it is sufficient to point out that it is apparent from the transmission report that the two faxes that were sent immediately before and after those which were sent for the purposes of notifying the contested decision in the present case as well as in the related Case T‑666/14 Monster Energy Company v OHIM (GREEN BEANS) were sent to addressees other than the applicant’s representative. Consequently, that argument on the part of the applicant must be rejected as irrelevant as regards the question whether, in the present case, OHIM has established the date on which the fax sent to the applicant’s representative was received.
29      In the second place, it must be examined whether the present action against the contested decision, which was notified to the applicant on 20 December 2013, was brought within the prescribed period, as referred to in paragraph 16 above.
30      Rule 70(2) of Regulation No 2868/95, which deals with the ‘Calculation of time limits’, states that ‘[w]here that procedural step is a notification, the event considered [to set time running] shall be the receipt of the document notified, unless otherwise provided’.
31      In the present case, as has been held in paragraph 24 above, the contested decision was notified to and received by the applicant on 20 December 2013. Consequently, the two-month period for bringing an action against the contested decision, extended on account of distance by 10 days pursuant to Article 102(2) of the Rules of Procedure, began to run on 21 December 2013, the day following that on which the fax at issue was received, and ended on 3 March 2014.
32      It follows from the foregoing considerations that the present action, which was lodged on 18 August 2014, is out of time.
33      Notwithstanding the conclusion drawn in paragraph 32 above, it is necessary to examine whether, as submitted by the applicant, the accident which gave rise to the malfunction of its representative’s fax machine, namely a fire and a flood which resulted in a power cut in the premises of that representative, constitutes unforeseeable circumstances or force majeure which would enable the Court to grant leave to bring an action out of time on the basis of the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union, which is applicable to proceedings before the General Court by virtue of Article 53 of that statute.
34      In that regard, it should be noted that, pursuant to established case-law, the periods prescribed for bringing proceedings are a matter of public policy and are not subject to the discretion of the parties or the court. The strict application of procedural rules serves the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice. In accordance with the second paragraph of Article 45 of the Statute of the Court of Justice, no derogation from the procedural time-limits may be made save where the circumstances are quite exceptional, in the sense of being unforeseeable or amounting to force majeure (see order in engineering for a better world, cited in paragraph 23 above, EU:T:2015:64, paragraph 26 and the case-law cited).
35      The Court of Justice has held that the concepts of unforeseeable circumstances and force majeure contain both an objective element, relating to abnormal circumstances unconnected with the applicant, and a subjective element involving the obligation, on the part of the applicant, to guard against the consequences of the abnormal event by taking appropriate steps, without making unreasonable sacrifices. In particular, the applicant must pay close attention to the course of the procedure set in motion and, amongst other things, act diligently in order to comply with the prescribed time-limits. Thus, the concept of force majeure does not apply to a situation in which, objectively, a diligent and prudent person would have been able to take the necessary steps before the expiry of the period prescribed for instituting proceedings (see order in engineering for a better world, cited in paragraph 23 above, EU:T:2015:64, paragraph 27 and the case-law cited).
36      Consequently, it is necessary to determine whether, as required (see order in engineering for a better world, cited in paragraph 23 above, EU:T:2015:64, paragraph 28 and the case-law cited), the applicant has established the existence, in the present case, of unforeseeable circumstances or of force majeure which made it impossible for it to comply with the time-limit for bringing an action.
37      Without it being necessary to rule on the objective element of the unforeseeable circumstances or force majeure invoked by the applicant, it is necessary at the outset to examine whether the second element required, namely the subjective element, is present here.
38      In that regard, it must be stated that a period of almost six months elapsed between, first, the occurrence of the accident to which the applicant refers and, secondly, 17 June 2014, the date on which the applicant maintains that its representative became aware of the existence and content of the contested decision.
39      In order to guard against the consequences of the accident to which the applicant refers in its observations on OHIM’s reply of 27 October 2014, its representative’s law firm should have checked whether, during the period in which its fax machine was malfunctioning, there had been a failure in the reception of faxes. The applicant merely states that its representative checked that his fax machine was in good working order on 20 December 2013 at 12.24 hrs and 12.25 hrs Western European Time (UTC + 0), that is to say a little more than an hour after the notification of the contested decision by OHIM at 12.19 hrs, Central European Time (UTC + 1). In any event, such a check, which was carried out after the alleged period during which the fax machine was malfunctioning, would not have been sufficient or even appropriate for the purpose of ascertaining that there had been a failure in the reception of faxes in the course of that period. Such a check, at best, enabled the applicant’s representative to establish that his fax machine was functioning again at the time when that check was carried out.
40      In order to ascertain whether faxes which were sent to him were not capable of being received during the period in which the fax machine was malfunctioning, the applicant’s representative should, without making unreasonable sacrifices, as regards a case for which he was responsible before OHIM, have ensured that the progress of that case was followed diligently by establishing, in the present case, in Case R 1285/2013-1, as soon as possible after that malfunction had occurred, directly with OHIM, whether the latter had notified a decision to him.
41      It follows from the foregoing considerations that the applicant’s representative did not, notwithstanding the alleged malfunction of his firm’s fax machine, take all reasonable steps to meet the deadline for bringing an action and ensure that the progress of the case for which he was responsible before OHIM was followed diligently in this instance.
42      Consequently, the concepts of force majeure and unforeseeable circumstances do not apply to the present situation, since, objectively, a diligent and prudent person would have been able to take the necessary steps before the expiry of the period prescribed for instituting proceedings.
43      The present action must therefore be dismissed as manifestly inadmissible.
Costs
44      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.
45      Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by OHIM.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby orders:
1.      The action is dismissed.
2.      Monster Energy Company shall pay the costs.
Luxembourg, 9 September 2015.
E. Coulon
M.E. Martins Ribeiro
Registrar
President
* Language of the case: English.