JUDGMENT OF THE GENERAL COURT (Ninth Chamber)

8 July 2020 ( *1 )

(EU trade mark — Opposition proceedings — International registration designating the European Union — Word mark welmax — Earlier EU word mark valmex — Time limits for an appeal before the Board of Appeal — Delay — Point from which time starts to run — Notification — Proof of dispatch by registered post — Communication by email — Failure to comply with the obligation to pay the appeal fee within the time limit — Appeal deemed not to have been filed — Scope of the requests for regularisation — Article 68(1) of Regulation (EU) 2017/1001 — Articles 23 and 56 to 58 of Delegated Regulation (EU) 2018/625)

In Case T‑305/19,

Welmax + sp. z o.o. sp.k., established in Poznań (Poland), represented by M. Machyński, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by D. Walicka, acting as Agent,

defendant,

the other party to the proceedings before the Board of Appeal of EUIPO being

Valmex Medical Imaging GmbH, established in Augsburg (Germany),

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 22 March 2019 (Case R 2245/2018-5), relating to opposition proceedings between Valmex Medical Imaging and Welmax +,

THE GENERAL COURT (Ninth Chamber),

composed of M.J. Costeira, President, D. Gratsias and M. Kancheva (Rapporteur), Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Court Registry on 14 May 2019,

having regard to the response lodged at the Court Registry on 11 September 2019,

having regard to the request for a hearing lodged by the applicant and having decided, pursuant to Article 106(1), of the Rules of Procedure of the General Court, to open the oral part of the procedure,

having regard to the letters, sent in answer to the question from the Court relating to oral hearings in the context of the current health crisis due to the COVID-19 pandemic, by which the main parties indicated that they did not wish to attend a hearing and, considering that it has been sufficiently informed by the documents in the file, having decided to close the oral part of the procedure,

gives the following

Judgment ( 1 )

…

Law

27 In support of its action, the applicant raises, in essence, a single plea in law alleging infringement of Article 68(1) of Regulation 2017/1001, read in conjunction with Article 23(3) of Delegated Regulation 2018/625. That single plea is broken down into three parts alleging errors of assessment concerning, first, the date of notification of the Opposition Division’s decision, second, the expiry of the period for bringing proceedings against that decision, and, third, the expiry of the period for paying the fee for the appeal against that decision. …

Compliance with the time limit for payment of the appeal fee and the scope of the requests for regularisation from EUIPO

65 According to the case-law, Article 60 of Regulation No 207/2009 (now Article 68(1) of Regulation 2017/1001) must be interpreted uniformly as meaning that payment of the appeal fee is required in order for the appeal to be regarded as having been filed, with the result that that payment is linked to the filing of the notice of appeal and must be made, in the same way as that filing, within a period of two months following the date of notification of the decision under appeal. The period of four months following the date of notification of the decision applies solely to the lodging of the written statement setting out the grounds of appeal, and not to the payment of the appeal fee (judgment of 21 May 2014, Melt Water v OHIM (NUEVA), T‑61/13, EU:T:2014:265, paragraph 31).

66 In the present case, the two-month time limit for the payment of the appeal fee which started to run from the notification by email of 21 September 2018, expired on 21 November 2018.

67 The applicant paid the appeal fee to EUIPO on 21 December 2018, which received it on 24 December 2018.

68 It must be held that the appeal fee was paid late, after the expiry of the time limit prescribed for bringing an appeal and for paying the fee on 21 November 2018.

69 That finding cannot be called into question by the applicant’s argument based on the alleged requests for regularisation of ‘formal irregularities’ in two letters from EUIPO of 26 November 2018 (see paragraphs 16 and 17 above).

70 In that regard, in the light of Article 23 of Delegated Regulation 2018/625, the scope of such requests for regularisation, after the expiry of the time limit laid down for bringing an appeal and paying the appeal fee must be clarified.

71 Therefore, it must be observed that the opportunities to regularise an application, in order to avoid the inadmissibility of the appeal, referred to in Article 23(1)(c) of Delegated Regulation 2018/625, do not include the non-payment of the appeal fee, but only the applicant’s name and address, the name and business address of its representative or a clear and unambiguous identification of the goods or services in respect of the goods and services which are the subject of the proceedings.

72 However, it must be held that the non-payment of the appeal fee within the time limit laid down cannot be regularised within the meaning of Article 23(1)(c) of Delegated Regulation 2018/625. In accordance with Article 23(3) thereof, where the appeal fee has been paid after the expiry of the time limit, the appeal is deemed not to have been filed, without any possibility to regularise it other than restitutio in integrum, subject to the specific provisions of Article 104 of Regulation 2017/1001.

73 It is true that, when such a time limit has already expired, EUIPO may, as by its second letter of 26 November 2018 in the present case, allow the party concerned to express its views and to send it any relevant information, in particular regarding unforeseeable circumstances or force majeure or even an excusable error, which could justify the non-payment of the appeal fee within the time limit laid down.

74 However, the applicant has neither established, or even alleged, the existence of unforeseeable circumstances, force majeure or an excusable error, which prevented it from paying the fee within the time limit prescribed, that is 21 November 2018. In particular, it is not EUIPO’s responsibility to remind the applicant to pay the appeal fee within the time limit, that requirement derives clearly and unambiguously from Article 68(1) of Regulation 2017/1001, of which the applicant was aware.

75 According to settled case-law, no derogation from the European Union rules on procedural time limits may be made save where the circumstances are quite exceptional, since the strict application of those rules serves the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice. Regardless of whether such circumstances are considered unforeseeable or to amount to force majeure or excusable error, they include, in any event, a subjective element involving the obligation, on the part of the party acting in good faith, to exercise all the care and diligence required of a normally well-informed trader to monitor the course of the procedure set in motion and to comply with the prescribed time limits (see judgment of 21 May 2014, NUEVA, T‑61/13, EU:T:2014:265, paragraph 38 and the case-law cited; order of 9 October 2019, Esim Chemicals v EUIPO — Sigma-Tau Industrie Farmaceutiche Riunite (ESIM Chemicals), T‑713/18, not published, EU:T:2019:744, paragraph 34). That is not the applicant’s position in the present case.

76 In addition, it must be observed that the applicant, after it was informed by EUIPO, in the second letter of 26 November 2018, of the failure to pay the appeal fee within the period prescribed and of the risk that its appeal would consequently be deemed not to have been filed, was not deprived of all recourse before EUIPO itself. Even on the assumption that the applicant sought to argue that, although it had exercised all due care required by the circumstances, it had been unable to comply with the time limit for payment of the appeal fee, it did have the possibility of bringing restitutio in integrum proceedings before EUIPO and could have submitted an application under Article 104 of Regulation 2017/1001 (see judgment of 21 May 2014, NUEVA, T‑61/13, EU:T:2014:265, paragraph 43 and the case-law cited). The applicant has not lodged any application for restitutio in integrum pursuant to that article.

77 It is true that the applicant mentions bringing proceedings in its letter of 20 December 2018. However, it has not filed any request for continuation of proceedings under Article 105 of Regulation 2017/1001. In any event, such a request would have been dismissed because that article, in accordance with paragraph 2 thereof, does not apply to the time limits laid down in Article 68 thereof, such as the time limit for filing an appeal and the time limit for payment of the appeal fee.

78 Finally, it must be held that, even if the Board of Appeal wrongly concluded, in paragraph 10 of the contested decision, that the Opposition Division’s decision had been notified to the applicant by registered letter on 20 July 2018 and that the time limit for payment of the appeal fee had expired on 20 September 2018, that error cannot however lead to the annulment of the contested decision. The Board of Appeal’s findings that the payment of the appeal fee, received on 24 December 2018, was out of time may be based on the date of notification by email of 21 September 2018, as is clear from paragraph 11 of the contested decision.

79 Therefore, the Board of Appeal was right, in paragraph 12 of the contested decision, to hold that the applicant’s appeal against the Opposition Division’s decision, had not been filed, considering essentially that, even based on the date of notification alleged by the applicant — and established by the Court in the present case — namely 21 September 2018, the fact remained that the appeal fee, received on 24 December 2018, was paid out of time.

80 Having regard to all of the foregoing considerations, the single plea, and therefore the application in its entirety must be dismissed, without it being necessary to rule on the admissibility of the applicant’s second and third heads of claim. …

On those grounds, THE GENERAL COURT (Ninth Chamber) hereby:

1. Dismisses the action;

2. Orders Welmax + sp. z o.o. sp.k. to pay the costs.

Costeira Gratsias Kancheva Delivered in open court in Luxembourg on 8 July 2020. [Signatures]

( *1 ) Language of the case: Polish.

( 1 ) Only the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.