ORDER OF THE GENERAL COURT (Sixth Chamber)
9 March 2022 (*)
(EU trade mark – Cancellation proceedings – Article 173(1) of the Rules of Procedure – Intervention of the other party to the proceedings before the Board of Appeal – Article 179 of the Rules of Procedure – Response lodged out of time – No excusable error – Article 62 of the Rules of Procedure – Request for an extension of the time limit – Article 143(1) of the Rules of Procedure – Intervention – Request lodged out of time – Article 68(4) and Article 144(7) of the Rules of Procedure – Request for confidential treatment – Rejection)
In Case T‑477/21,
Glaxo Group Ltd, established in Brentford (United Kingdom), represented by T. de Haan and F. Verhoestraete, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by D. Gája, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
Cipla Europe NV, established in Antwerp (Belgium),
ACTION brought against the decision of the First Board of Appeal of EUIPO of 19 May 2021 (Case R 1835/2016-1), relating to cancellation proceedings between Cipla Europe NV and Glaxo Group Ltd,
THE GENERAL COURT (Sixth Chamber),
composed of A. Marcoulli, President, C. Iliopoulos and R. Norkus (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background and procedure
1        On 9 November 2005, the applicant, Glaxo Group Ltd, obtained from the European Union Intellectual Property Office (EUIPO), on the basis of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1), as amended, itself 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)), registration, under the number 2 179 562, of the following three-dimensional EU trade mark:
2        On 16 December 2014, the other party to the proceedings before EUIPO, Cipla Europe NV, filed an application for a declaration of invalidity of the contested mark on the basis of Article 52(1)(a) of Regulation No 207/2009, read in conjunction with Article 7(1)(a) to (e)(ii) of that regulation (now, respectively, Article 59(1)(a) and Article 7(1)(a) to (e)(ii) of Regulation 2017/1001).
3        By decision of 16 September 2016, the Cancellation Division upheld the application for a declaration of invalidity.
4        On 3 October 2016, the applicant filed a notice of appeal with EUIPO under Articles 58 to 64 of Regulation No 207/2009 (now Articles 66 to 71 of Regulation 2017/1001), seeking annulment of the Cancellation Division’s decision.
5        By decision of 19 May 2021, the First Board of Appeal dismissed the appeal and declared the contested mark invalid.
6        By application lodged at the Court Registry on 9 September 2021, the applicant brought an action for annulment of the Board of Appeal’s decision.
7        In accordance with Article 178(3) of the Rules of Procedure of the General Court, the application was served on Cipla Europe NV by letter of the Registrar of the General Court of 11 August 2021, of which it acknowledged receipt on 26 August 2021.
8        On 13 November 2021, Cipla Europe NV lodged a response at the Court Registry.
9        On 16 November 2021, the Court Registry noted that Cipla Europe NV had not responded to the application within the prescribed period.
10      By a measure of organisation of procedure of 30 November 2021, the Court requested Cipla Europe NV to submit its observations on the reasons for the late lodging of its response.
11      On 15 December 2021, Cipla Europe NV replied to the Court’s request. In essence, it claims, principally, that the late lodging of its response was due to the existence of unforeseeable circumstances or force majeure within the meaning of the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union. In the alternative, it requests, on the basis of Article 62 of the Rules of Procedure, an extension of the time limit for lodging a response. In the further alternative, Cipla Europe NV seeks leave to intervene in order to submit oral observations at the hearing. In addition, it requests that certain documents and information in its written pleadings be treated as confidential.
Law
12      In accordance with Article 173(1) of the Rules of Procedure, a party to the proceedings before the Board of Appeal other than the applicant may participate, as intervener, in the proceedings before the General Court by responding to the application in the manner and within the time limit prescribed.
13      As is recognised in the second paragraph of Article 53 of the Statute of the Court of Justice of the European Union, litigation in the field of intellectual property presents specific features which require derogation from certain provisions governing proceedings before the General Court. The specific provisions of Title IV of the Rules of Procedure concerning proceedings relating to intellectual property rights have been adopted in order to take account of those specific features. To that end, inter alia, specific rules on interveners were adopted (see order of 7 December 2016, Claranet Europe v EUIPO – Claro (claranet), T‑129/16, not published, EU:T:2016:728, paragraph 8 and the case-law cited).
14      In the absence of any provisions in the Statute of the Court of Justice of the European Union and the Rules of Procedure of the General Court expressly governing certain aspects of dealing with interventions in intellectual property proceedings, the procedural provisions of Articles 19 and 144 of the Rules of Procedure must be applied by analogy (orders of 18 March 2016, Sociedad agraria de transformación No 9982 Montecitrus v OHIM – Spanish Oranges (MOUNTAIN CITRUS SPAIN), T‑495/15, not published, EU:T:2016:179, paragraph 9, and of 19 June 2019, Glimarpol v EUIPO – Metar (Pneumatic power tools), T‑748/18, not published, EU:T:2019:464, paragraph 9).
15      Under Article 19 of the Rules of Procedure, read in conjunction with Article 144(5) and (6) thereof, the President is to decide on the application to intervene by order or must refer the decision to the General Court. The order must be reasoned if the application is dismissed.
16      The President of the Sixth Chamber of the Court referred to the Chamber the question whether, in the circumstances of the present case, Cipla Europe NV could be granted leave to participate in the proceedings before the Court as intervener under Article 173(1) of the Rules of Procedure.
Existence of unforeseeable circumstances or force majeure
17      In its response to the measure of organisation of procedure, Cipla Europe NV does not dispute that its defence was lodged out of time. However, it submits, primarily and in essence, that the reason for that late submission is the existence of unforeseeable circumstances or force majeure.
18      Under the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union, no right is to be prejudiced in consequence of the expiry of a time limit if the party concerned proves the existence of unforeseeable circumstances or of force majeure.
19      In that regard, it must be noted that in accordance with the case-law, the concept of force majeure must be understood in the sense of unusual and unforeseeable circumstances beyond the trader’s control, the consequences of which could not have been avoided even if all due care had been exercised. The latter condition, which corresponds to the subjective element of unforeseeable circumstances or force majeure, involves the obligation, on the part of the party concerned, to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices (see order of 4 May 2016, Monster Energy v EUIPO, C‑602/15 P, not published, EU:C:2016:331, paragraph 35 and the case-law cited). In particular, the trader must pay close attention to the course of the procedure set in motion and, in particular, demonstrate diligence in order to comply with the prescribed time limits. Those concepts do 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 time limit prescribed for instituting proceedings (see order of 11 June 2020, GMPO v Commission, C‑575/19 P, not published, EU:C:2020:448, paragraph 34 and the case-law cited).
20      Furthermore, it is important to note that it is clear from the Court’s case-law that, under EU rules on time limits for bringing proceedings, the concept of excusable error must be strictly construed and relates only to exceptional circumstances in which, in particular, the conduct of the institution concerned has been, either in itself or to a significant extent, such as to give rise to understandable confusion on the part of a party acting in good faith and exercising all the diligence required of a normally experienced trader (see order of 11 June 2020, GMPO v Commission, C‑575/19 P, not published, EU:C:2020:448, paragraph 36 and the case-law cited).
21      In the present case, Cipla Europe NV refers to a human error detected in the internal handling of the letter consisting of the affixing of the stamp indicating 6 September 2021 instead of 26 August 2021 as the date of entry into the group responsible for trade marks and patents. It points out, in particular, that such an error has never occurred until now and that all measures have already been taken to ensure that it does not recur.
22      In that regard, it is sufficient, however, to note that a party may not rely either on the inadequate functioning of its internal organisation or on a failure to apply its internal instructions in support of its claim that the error which it or its employees committed was excusable, or that there were unforeseeable circumstances or force majeure (see, to that effect, order of 28 April 2008, PubliCare Marketing Communications v OHIM (Publicare), T‑358/07, not published, EU:T:2008:130, paragraph 17 and the case-law cited).
23      It follows from the foregoing that, since Cipla Europe NV did not lodge its response to the application within the prescribed time limit, or establish the existence of unforeseeable circumstances or force majeure, it may not participate in the proceedings before the Court as intervener under Article 173(1) of the Rules of Procedure and that the response which it lodged out of time is inadmissible.
The request for an extension of the time limit for lodging a response
24      In the alternative, Cipla Europe NV requested an extension of the time limit for lodging its response pursuant to Article 62 of the Rules of Procedure. That provision provides that a procedural document lodged at the Court Registry after expiry of the time limit set by the President or by the Registrar under the Rules of Procedure may be accepted only pursuant to a decision of the President to that effect.
25      The present case, however, does not concern a time limit fixed by the President or Registrar under the Rules of Procedure, but a time limit which is fixed by the Rules of Procedure themselves, namely Article 179 thereof. Article 62 of the Rules of Procedure is therefore not applicable in the present case.
26      It should be noted, however, that Cipla Europe NV was duly informed by the Court Registry, in its letter of 11 August 2021 accompanying service of the application, that a request for an extension of the time limit for lodging a response had to be submitted in good time before the expiry of the time limit laid down in Article 179 of the Rules of Procedure. Although neither Article 62 nor Article 179 of those rules specifies the period within which the application for an extension must be submitted, the second sentence of paragraph 69 of the practice rules for the implementation of those rules, adopted pursuant to Article 224 of those rules, provides that applications for extensions of time limits must be duly reasoned and be submitted in good time before the expiry of the time limit prescribed. However, the request for an extension of the time limit was clearly made by Cipla Europe NV after the expiry of that period.
27      In any event, it should be borne in mind that, in order to state the reasons for its request for an extension of the time limit for lodging the response, Cipla Europe NV alleges, in essence, a defective functioning of its internal organisation. Consequently, to grant that request would be tantamount to allowing it to rely on its own fault or negligence to justify the failure to comply with procedural rules.
28      Moreover, Cipla Europe NV submits, in essence, that the failure to comply with the time limit for lodging a response was not excessive and that the extension of that period would not cause prejudice to the other parties. Those arguments cannot succeed.
29      It is clear from the case-law that the strict application of the procedural rules laying down time limits serves the requirement of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice (see, to that effect and by analogy, judgment of 22 September 2011, Bell & Ross v OHIM, C‑426/10 P, EU:C:2011:612, paragraphs 43, 54 and 55).
30      Accordingly, Cipla Europe NV’s request for an extension of the time limit for lodging a response must be rejected.
The application to intervene
31      In the further alternative, Cipla Europe NV seeks leave to intervene pursuant to Article 116(6) of the Rules of Procedure of the General Court of 2 May 1991 (OJ 1991 L 136, p. 1), as amended on 19 May 2013 (OJ 2013 L 173, p. 66), in order to be able to submit oral observations at a hearing.
32      It should be noted, first of all, that the procedural provisions on which Cipla Europe NV states that that request is based were repealed by the entry into force of the Rules of Procedure of the General Court (OJ 2015 L 105, p. 1) on 1 July 2015.
33      Next, assuming that by that application Cipla Europe NV intended to make an application to intervene within the meaning of Article 142 of the Rules of Procedure, it must be borne in mind that, under Article 143(1) of the Rules of Procedure, an application to intervene must be submitted within six weeks, which is to commence with the publication referred to in Article 79 of those rules.
34      In the present case, since the notice in the Official Journal of the European Union referred to in Article 79 of the Rules of Procedure was published on 20 September 2021, the application to intervene was submitted after the expiry of the period of six weeks laid down in Article 143(1) of the Rules of Procedure, extended on account of distance by a single period of 10 days provided for in Article 60 of those rules. The time limit for lodging an application to intervene expired on 11 November 2021.
35      Consequently, the application to intervene must be rejected and there is no need to consider whether it satisfies the conditions laid down in Article 143(2) to (4) of the Rules of Procedure.
The request for confidential treatment
36      Cipla Europe NV also requests that the information contained in paragraphs 1 to 18 of its observations on the reasons for the late lodging of the response and the annexes to those observations be treated as confidential within the meaning of Article 68(4) and Article 144(7) of the Rules of Procedure.
37      It must be stated at the outset that those provisions are not applicable in the present case.
38      First, as regards Article 68(4) of the Rules of Procedure, it is clear from the title and general scheme of that article that that provision is applicable where the decision to join several cases has been made. However, that is clearly not the case here.
39      Secondly, as regards Article 144(7) of the Rules of Procedure, it is apparent from that provision and from paragraphs 175 and 177 to 184 of the Practice Rules for the Implementation of the Rules of Procedure that the confidential treatment referred to in that provision is the protection, vis-à-vis a party granted leave to intervene, of the information contained in the procedural documents and documents already placed in the case file by a main party.
40      Cipla Europe NV cannot therefore rely on that provision in order to request that certain information contained in its written pleadings and certain documents be excluded from the communication to the main parties.
41      Accordingly, the application for confidential treatment must be rejected and there is no need to examine whether it satisfies the conditions laid down, inter alia, in paragraphs 179 to 184 of the Practice Rules for the Implementation of the Rules of Procedure.
Costs
42      Under Article 133 of the Rules of Procedure, a decision as to costs is to be given in the judgment or order which closes the proceedings. Since the present order closes the proceedings as regards Cipla Europe NV, it is appropriate to rule on the costs relating to its applications.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby orders:
1.      Cipla Europe NV is not granted leave to participate, as intervener, in the proceedings in Case T‑477/21 pursuant to Article 173(1) of the Rules of Procedure of the General Court.
2.      Cipla Europe NV is not granted leave to participate, as intervener, in the proceedings in Case T‑477/21 pursuant to Article 142 of the Rules of Procedure of the General Court.
3.      Cipla Europe NV’s application for confidential treatment is dismissed.
4.      Cipla Europe NV shall bear its own costs.
Luxembourg, 9 March 2022.
E. Coulon
A. Marcoulli
Registrar
President
*      Language of the case: English.