ORDER OF THE GENERAL COURT (Second Chamber)
18 March 2016(*)
(Community trade mark — Article 173(1) of the Rules of Procedure — Intervention by the other party to the proceedings before the Board of Appeal — Response lodged out of time — Rejection)
In Case T‑495/15,
Sociedad agraria de transformación No 9982 Montecitrus, established in Pulpí (Spain), represented by N.A. Fernández Fernández-Pacheco, lawyer,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by K. Sidat Humphreys and A. Schifko, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM being
Spanish Oranges, SL, established in Castellón (Spain)
ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 26 June 2015 (Case R 871/2014-4), relating to opposition proceedings between Sociedad agraria de transformación No 9982 Montecitrus and Spanish Oranges, SL,
THE GENERAL COURT (Second Chamber),
composed of M.E. Martins Ribeiro, President, S. Gervasoni and L. Madise, Judges,
Registrar: E. Coulon,
makes the following
Order
1        On 24 October 2012, Spanish Oranges, SL, filed an application for registration of a Community trade mark with the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).
2        On 28 February 2013, the applicant, Sociedad agraria de transformación No 9982 Montecitrus, filed a notice of opposition to registration of the mark applied for.
3        Since the Opposition Division rejected the opposition by decision of 30 January 2014, the applicant filed a notice of appeal with OHIM.
4        By decision of 26 June 2015, the Fourth Board of Appeal of OHIM dismissed the appeal.
5        By application lodged at the Court Registry on 27 August 2015, the applicant brought an action against the decision of the Board of Appeal.
6        In accordance with Article 178(3) of the Rules of Procedure of the General Court, the application was served on Spanish Oranges, SL, by letter from the Registrar of the Court of 24 September 2015, of which it acknowledged receipt on 5 October 2015.
7        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 Court by responding to the application in the manner and within the time-limit prescribed.
8        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. One such feature is the fact that such litigation involves, so far as opposition proceedings are concerned, disputes between private persons. To that end, specific rules on interveners, in particular, were adopted (order of 15 May 2012 in Fercal v OHIM — Parfums Rochas (PATRIZIA ROCHA), T‑360/11, EU:T:2012:238, paragraph 8).
9        In the absence of any provisions in the Statute of the Court of Justice 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 those Rules of Procedure must be applied by analogy (see order in PATRIZIA ROCHA, cited in paragraph 8 above, EU:T:2012:238, paragraph 8).
10      Under Article 19 of the Rules of Procedure, 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 refused.
11      The President of the Second Chamber of the Court referred to the Chamber the question of whether, in the present case, by lodging its response, Spanish Oranges, SL, may be granted leave to participate in the proceedings before the Court as intervener under Article 173(1) of the Rules of Procedure.
12      In that regard, it must be noted that Article 179 of the Rules of Procedure provides:
‘The defendant and the parties to the proceedings before the Board of Appeal other than the applicant shall submit their responses to the application within a time-limit of two months from the service of the application. That time-limit may, in exceptional circumstances, be extended by the President at the reasoned request of the party concerned.’
13      The time-limit referred to in the preceding paragraph is to be extended on account of distance by a single period of 10 days, pursuant to Article 60 of the Rules of Procedure.
14      In the present case, the time-limit for Spanish Oranges, SL, to lodge a response, which was not extended further, expired on 15 December 2015 at midnight.
15      On 15 December 2015, Spanish Oranges, SL, faxed the Court Registry a copy of its response.
16      Under Article 73(3) of the Rules of Procedure, the date on which a copy of the signed original of a procedural document is received at the Court Registry by fax is to be deemed to be the date of lodgment for the purposes of compliance with the procedural time-limits, only if the signed original of the document is lodged at the Court Registry no later than 10 days after receipt of the fax.
17      However, Spanish Oranges, SL, did not lodge the original of its response at the Court Registry until 13 January 2016, that is, outside the 10-day time-limit referred to in Article 73(3) of the Rules of Procedure. That fact precludes the date on which the response was faxed from being taken into consideration.
18      It must, therefore, be concluded that the response of Spanish Oranges, SL, was lodged out of time.
19      In the context of the measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, the Court (Second Chamber) invited Spanish Oranges, SL, to submit to it, by no later than 16 February 2016, observations on the late submission of its response.
20      On 11 February 2016, Spanish Oranges, SL, faxed the Court Registry a copy of its observations.
21      Since Spanish Oranges, SL, did not lodge the original of its observations with the Court Registry within the 10-day time-limit referred to in Article 73(3) of the Rules of Procedure, that fact precludes the date on which the observations were faxed from being taken into consideration.
22      Since Spanish Oranges, SL, has failed to provide within the time-limit set evidence enabling, where appropriate, the delay in lodging the response to be regarded as falling within the second paragraph of Article 45 of the Statute of the Court of Justice — under which 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 — notwithstanding the fact that the Court afforded it the opportunity of making submissions in that regard, it is not granted leave to participate in the proceedings in Case T‑495/15 as intervener under Article 173(1) of the Rules of Procedure.
23      Furthermore, since the date postmarked on the envelope containing the original of the response of Spanish Oranges, SL, was 7 January 2016, that document was sent 23 days after the response was lodged by fax. Spanish Oranges, SL, is not therefore, in any event, justified in pleading a postal delay for the purposes of establishing the existence of unforeseeable circumstances or of force majeure.
Costs
24      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 far as Spanish Oranges, SL, is concerned, a decision must be given on the costs relating to its intervention.
25      As the present order has been adopted before the parties could have incurred costs associated with the procedural activity of Spanish Oranges, SL, it is sufficient to decide that the latter must bear its own costs.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby orders:
1.      Spanish Oranges, SL, is refused leave to participate in the proceedings in Case T‑495/15 as intervener under Article 173(1) of the Rules of Procedure of the Court.
2.      Spanish Oranges, SL, shall bear its own costs.
Luxembourg, 18 March 2016.
E. Coulon
M.E. Martins Ribeiro
Registrar
President
* Language of the case: English.