62020TJ0003_RES
Case T‑3/20
Forbo Financial Services AG
v
European Union Intellectual Property Office
Judgment of the General Court (Third Chamber), 16 December 2020
(EU trade mark – Opposition proceedings – Application for the EU word mark Canoleum – Earlier international word mark MARMOLEUM – Relative ground for refusal – Late filing of the statement of the grounds of appeal – Inadmissibility of the appeal before the Board of Appeal – Request for restitutio in integrum – Sudden illness of the lawyer representing the applicant – Duty of due care – Probative value of the affidavit made by the lawyer)
EU trade mark – Procedural provisions – Restitutio in integrum – Conditions – Due care required by the circumstances – Exceptional events, which cannot therefore be predicted
(European Parliament and Council Regulation 2017/1001, Art. 104(1))
(see paragraphs 45, 46)
EU trade mark – Procedural provisions – Restitutio in integrum – Conditions under which applicable – Strict interpretation
(European Parliament and Council Regulation 2017/1001, Art. 104(1))
(see paragraph 47)
EU trade mark – Procedural provisions – Probative value of the evidence – Solemn declarations
(European Parliament and Council Regulation 2017/1001, Arts 97(1)(f) and 104(1))
(see paragraphs 51-59)
Résumé
On 17 May 2017, Windmöller Flooring Products WFP GmbH filed an application for registration of the word sign Canoleum as an EU trade mark. On 27 September 2017, Forbo Financial Services AG filed a notice of opposition to registration of the mark applied for with the European Union Intellectual Property Office (EUIPO) on the basis of its international word mark MARMOLEUM. It claimed that there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009. (
1
) By decision of 12 February 2019, the opposition was rejected.
On 9 April 2019, Forbo Financial Services filed a notice of appeal with EUIPO. However, it did not file the statement setting out the grounds of appeal until 26 June 2019, outside of the prescribed time limit. (
2
) It annexed to its statement an application for restitutio in integrum (
3
) in which it claimed that the lawyer responsible for its case file (‘the first lawyer’) had not been able to file the statement within the prescribed time limit due to a serious illness he had unforeseeably contracted. To substantiate that claim, Forbo Financial Services presented two affidavits, one from the lawyer and the other from his wife. By decision of 9 October 2019, the Board of Appeal dismissed the appeal as inadmissible. It held that the first lawyer had not provided sufficient evidence that he had taken the due care required by the circumstances. It criticised him, in particular, for having failed to produce a medical certificate.
Forbo Financial Services brought an action before the General Court, which annulled the decision of the Board of Appeal on the ground, in essence, that the Board of Appeal had, from the outset, denied all credibility to the two affidavits at issue and dismissed the detailed explanations given therein.
Findings of the General Court
First of all, the General Court recalls that an affidavit constitutes admissible evidence. (
4
) Furthermore, the General Court notes that a statement drawn up in the interests of its author has only limited probative value and must be corroborated by additional evidence, but that this does not, however, allow the adjudicating bodies of EUIPO to consider as a matter of principle that such a statement is, in itself, devoid of any credibility. The probative value of such a statement depends on the circumstances of the case. However, as a matter of fact, the Board of Appeal denied all credibility to the two affidavits at issue from the outset and, therefore, failed to take due consideration of the particular circumstances of the case.
Secondly, as regards the statement given by the first lawyer, the General Court finds that the Board of Appeal disregarded the fact that he is a legal professional who is required to follow a code of ethics and uphold moral standards, and if he were guilty of giving an affidavit that was false, this would make him subject to criminal sanctions and jeopardise his reputation. The General Court adds that an affidavit made by a lawyer constitutes, in itself, solid evidence of the information provided therein, where it is clear, devoid of contradictions and consistent, and where there is no factual evidence capable of calling its truthfulness into question.
Furthermore, the Board of Appeal did not take into account the fact that the illness which the first lawyer claims was the reason the time limit was not complied with was a personal matter, and that he was best placed to provide information on that incident and, in particular, on the symptoms and ailments he had suffered.
As regards the affidavit made by the wife of the first lawyer, the Board of Appeal should also have taken into account that the persons who witness an incident such as that which occurred in this case are usually from the immediate circle of the person concerned, and that the wife of that lawyer, like the lawyer himself, would be subject to criminal sanctions if she were to make an affidavit that was false.
Lastly, the General Court states that the Board of Appeal failed to take into account that additional evidence to corroborate the content of the two affidavits, such as a medical certificate, could not reasonably be required or was unavailable. In that regard, the General Court states that the case concerns a singular and accidental event which was personal to the person concerned, and that it is therefore different from the situations generally referred to in the case-law relating to the probative value of affidavits, where the latter are presented to attest to facts that are purely objective and not of a personal nature.
The General Court therefore annuls the decision of the Board of Appeal.
(
1
)	Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended.
(
2
)	The final sentence of Article 68(1) of 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) provides that, within four months of the date of notification of the decision, a written statement setting out the grounds of appeal is to be filed.
(
3
)	Under Article 104 of Regulation 2017/1001.
(
4
)	For the purposes of Article 97(1)(f) of Regulation 2017/1001.