ORDER OF THE COURT (Eighth Chamber)

4 May 2016 ( )

(Appeal — Article 181 of the Rules of Procedure — EU trade mark — Grounds which are manifestly inadmissible or manifestly unfounded)

In Case C‑602/15 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 10 November 2015,

Monster Energy Company, established in Corona (United States), represented by P. Brownlow, Solicitor,

appellant,

the other party to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

THE COURT (Eighth Chamber),

composed of D. Šváby (Rapporteur), President of the Chamber, J. Malenovský and M. Safjan, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: A. Calot Escobar,

having regard to the decision taken, after hearing the Advocate General, to give a decision on the action by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,

makes the following

Order

1 By its appeal, Monster Energy Company seeks to have set aside the order of the General Court of the European Union of 9 September 2015 in Monster Energy v OHIM (Representation of a peace symbol) (T‑633/14, not published, EU:T:2015:658) (‘the order under appeal’) dismissing its action against the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 11 December 2013 (R 1285/2013-1) concerning an application for registration of a figurative sign representing a peace symbol as a Community trade mark (‘the contested decision’).

Legal context

2 Article 65 of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), provides as follows:

‘1. Actions may be brought before the Court of Justice against decisions of the Boards of Appeal on appeals.

...

5. The action shall be brought before the Court of Justice within two months of the date of notification of the decision of the Board of Appeal.

...’

3 Pursuant to Article 166 thereof, that regulation repealed Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), but references made to the repealed regulation are to be construed as references to Regulation No 207/2009.

4 Under Rule 65(1) of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Regulation No 40/94 (OJ 1995 L 303, p. 1), as amended by Regulation (EC) No 1041/2005 of 29 June 2005 (OJ 2005 L 172, p. 4) (‘Regulation No 2868/95’):

‘Notification by telecopier shall be effected by transmitting either the original or a copy, as provided for in Rule 61 (1), of the document to be notified. Notification shall be deemed to have been taken place on the date on which the communication was received by the telecopying device of the recipient.’

5 In addition to that provision, Rule 70(2) of that regulation, entitled ‘Calculation of time limits’, provides as follows: ‘Where that procedural step is a notification, the event considered shall be the receipt of the document notified, unless otherwise provided’.

6 Rule 68 of that regulation, entitled ‘Irregularities in notification’, provides as follows:

‘Where a document has reached the addressee, if the Office is unable to prove that it has been duly notified or if provisions relating to its notification have not been observed, the document shall be deemed to have been notified on the date established by the Office as the date of receipt.’

7 The second paragraph of Article 45 of the Statute of the Court of Justice of the European Union reads as follows:

‘No right shall 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.’

Background to the dispute

8 The background to the dispute, as set out by the General Court in paragraphs 1 to 9 of the order under appeal, may be summarised as follows.

9 On 21 November 2012, Monster Energy Company filed an application with EUIPO for registration of a figurative sign representing a peace symbol. That application was rejected by decision of the examiner of 8 May 2013.

10 On 8 July 2013, Monster Energy Company lodged an appeal with EUIPO against that decision. That appeal was dismissed by the contested decision. That decision was addressed to Monster Energy Company by fax on 20 December 2013.

11 On 23 June 2014, Monster Energy Company informed EUIPO that, following a check on the progress of Case R 1285/2013-1, it had discovered that the contested decision had been delivered, although it had not been notified thereof. Therefore, it requested that a new period for bringing an action should begin to run for the purpose of bringing proceedings against that decision. On 2 July 2014, Monster Energy Company filed a complaint to that effect.

12 On 10 July 2014, EUIPO replied that the contested decision had been notified to it by fax machine on 20 December 2013.

The proceedings before the General Court and the order under appeal

13 By application lodged at the General Court Registry on 18 August 2014, Monster Energy Company brought an action for annulment of the contested decision.

14 EUIPO contended that that action should be dismissed on the ground that it was out of time, since it considered that that decision had been notified to Monster Energy Company on 20 December 2013.

15 Monster Energy Company denied that its action had been brought out of time. First, it stated that it had opted, by letter of 18 December 2013, for a method of notification by electronic means in connection with the proceedings before EUIPO, with the result that EUIPO should have notified the contested decision to it by those means and not by fax. Secondly, it submitted that, on account of a technical failure, its representative had not been informed before 17 June 2014 of the notification of that decision by fax of 20 December 2013 or, a fortiori, of the content of that decision.

16 It is clear from paragraphs 18 to 22 of the order under appeal, having regard to Monster Energy Company’s claim concerning the notification method used by EUIPO for the contested decision, that the General Court, without ruling on the merits of that claim, applied Rule 68 of Regulation No 2868/95 on irregularities in notification on the part of EUIPO.

17 In that context, the General Court, first, noted, in paragraph 24 of the order under appeal, that the transmission report generated by EUIPO’s fax machine, which is dated 20 December 2013 and relates to the notification of the contested decision, contains the term ‘ok’. Secondly, in paragraph 23 of that order, the Court held, with reference to its case-law, that ‘the production, by EUIPO, 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”, it can be considered that the fax sent has been received by the addressee’. Consequently, the Court held, in paragraph 24 of that order, that EUIPO had established that the fax which it sent to the appellant on 20 December 2013 reached the latter on that date, with the result that the contested decision included in that transmission had been notified on that date.

18 The General Court then rejected several arguments put forward by Monster Energy Company claiming that the fax in question had not been received, highlighting in particular, in paragraph 26 of the order under appeal, that the fact that its representative’s fax machine was alleged to be out of order could not be imputed to EUIPO, which was merely obliged to create the conditions necessary for the addressee to take effective cognisance of its transmission, that is to say an obligation to use best endeavours, which corresponds to the external aspect of the notification.

19 Considering that, with regard to EUIPO’s transmission of the contested decision by fax on 20 December 2013 and its receipt, the notification of that decision took place on that date and that, accordingly, the period for lodging an appeal expired on 3 March 2014, the General Court noted, in paragraph 32 of the order under appeal, that Monster Energy Company’s application, which was lodged on 18 August 2014, was out of time.

20 Next, examining Monster Energy Company’s claim that the accident which gave rise to the failure of its representative’s fax machine at the time of transmission of that fax constituted unforeseeable circumstances or force majeure within the meaning of Article 45 of the Statute of the Court of Justice of the European Union, the General Court held, in paragraph 35 of the order under appeal that the concepts of unforeseeable circumstances or force majeure imply, in particular, that there is a subjective element corresponding to the obligation, on the part of the party seeking to rely on those concepts, to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices.

21 In that regard, the Court noted, with reference to its case-law, that the concept of force majeure within the meaning of the abovementioned Article 45 does not relate 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.

22 The General Court held, in paragraphs 39 to 42 of the order under appeal, that that was the case in the matter at issue, with the result that Monster Energy Company could not reasonably rely on unforeseeable circumstances or force majeure. It considered that Monster Energy Company’s representative had not taken all reasonable steps which a diligent and prudent person would have been in a position to take before the expiry of the period prescribed for instituting proceedings. Thus, according to the General Court, in order to avoid the consequences of the accident alleged in so far as concerns a possible time-bar, that representative ought to have checked whether, during the period in which its fax machine was malfunctioning, there had been a failure in the reception of faxes. In particular, as regards a case pending before EUIPO for which he was responsible, he should have diligently checked the progress of that case by establishing, as soon as possible after that failure had occurred, directly with EUIPO, whether the latter had notified a decision to him. A precaution such as that does not involve unreasonable sacrifices.

Form of order sought before the Court of Justice

23 By its appeal, Monster Energy Company claims that the Court should:

– set aside the order under appeal;

– refer the case back to the General Court for judgment, and

– order EUIPO to pay the costs.

The appeal

24 Under Article 181 of the Court’s Rules of Procedure, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.

25 It is appropriate to apply that provision in the present case.

26 In support of its appeal, Monster Energy Company relies on four grounds of appeal, alleging infringement of Article 65 of Regulation No 207/2009, Rule 68 of Regulation No 2868/95, the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union, the principle of proportionality and the principle of the protection of legitimate expectations, respectively.

The first ground of appeal

27 The first ground of appeal alleges infringement of Article 65 of Regulation No 207/2009, which fixes the period for bringing an appeal against decisions of the Boards of Appeal of EUIPO as two months from the date of notification of the decision in question. By that ground of appeal, the appellant claims that the General Court erred in deciding that the notification of the contested decision had to be deemed to have been effected on 20 December 2013, the date on which the appellant’s representative received the fax containing the text of that decision and, consequently, the period for bringing an appeal against it started to run as from that day, while, that representative not having received that fax, no notification by fax took place pursuant to Rule 65(1) of Regulation No 2868/95, with the result that that transmission by fax could not constitute notification within the meaning of Article 65 of Regulation No 207/2009.

28 That ground of appeal stems, however, from an erroneous reading of the order under appeal.

29 As is clear from paragraph 22 of that order, the General Court examined the transmission by fax of 20 December 2013 not in the light of Rule 65(1) of Regulation No 2868/95, which relates to notifications by telecopier, but in the light of Rule 68 of that regulation, which relates to proof of the date of receipt of a document in the event of irregularities in notification.

30 Accordingly, since it alleges misapplication of a provision that was not applied by the General Court, that ground of appeal is manifestly unfounded.

The second ground of appeal

31 The second ground of appeal alleges infringement of Rule 68 of Regulation No 2868/95, which relates to failure to notify or incorrect notification by EUIPO of documents deemed to have been notified on the date established by EUIPO as the date of receipt. By that ground of appeal, the appellant complains that the General Court applied that rule when it was not applicable in the circumstances of the case. While that rule supposes that the document in question ‘has reached the addressee’, the appellant claims that it is clear from the statement of its representative and the report from that representative’s fax machine annexed to that statement that EUIPO’s fax of 20 December 2013 did not reach it, and the evidence accordingly adduced to the effect that that fax was not received deprives the transmission report submitted by EUIPO of any evidential value, which was the basis on which the General Court considered that the external aspect of the notification was established.

32 However, it must be noted that that ground of appeal is based on calling into question the assessment of the facts and evidence made by the General Court, without claiming that it misconstrued that evidence. Assessment of the facts by the General Court does not constitute, save where the evidence put before that court has been fundamentally misconstrued, a point of law which is subject, as such, to review by the Court on appeal.

33 The present ground of appeal is therefore manifestly inadmissible.

The third ground of appeal

34 The third ground of appeal, which is put forward in the alternative, if it should be necessary to consider that the notification of the contested decision is deemed to have taken place on 20 December 2013, alleges infringement of the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union, which relates to the effect of unforeseeable circumstances or force majeure in the event of expiry of a time limit, and of the general principle of proportionality. By that ground of appeal, the appellant claims that the General Court erred in considering that the circumstances alleged by the former in order to demonstrate that the fax was not in fact received from EUIPO on 20 December 2013 did not constitute unforeseeable circumstances or force majeure, for the subjective element required for such a case to be recognised was lacking. The complaint relied upon in that regard, that is to say, that, after the failure of the fax machine, the appellant’s representative did not check as soon as possible with EUIPO whether the latter had notified a decision to him, constitutes, according to the appellant, a disproportionate and unjustified requirement. First, the appellant argues that that requirement involves unreasonable sacrifices, within the meaning of the relevant case-law, since the appellant’s representative is likely to deal with thousands of clients, third parties and agents every day. Secondly, EUIPO had confirmed on 18 December 2013 that the appellant had agreed that notifications would be sent to it via electronic communication, meaning that its representative had no reason to confirm whether EUIPO had notified a document by fax to him on 20 December 2013, in particular since EUIPO had confirmed that, after a period of instability, its electronic communications system was stable once again as from 19 December 2013.

35 In accordance with the case-law of the Court, the concept of force majeure must be understood in the sense of unusual and unforeseeable circumstances beyond the operator’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. Sufficient diligence requires, in addition, continuous action aimed at identifying and assessing potential risks and the ability to take appropriate and effective steps in order to avoid them (see to that effect, judgment of 18 December 2007 in Société Pipeline Méditerranée et Rhône, C‑314/06, EU:C:2007:817, paragraphs 23, 24 and 37).

36 The question whether the person relying on force majeure has taken appropriate steps without making unreasonable sacrifices, within the meaning of the case-law referred to in the above paragraph of this order, corresponds to a factual assessment, for which the Court of Justice has no jurisdiction, with the result that the assessment made in that regard by the General Court may not be submitted to the Court of Justice on appeal.

37 That ground of appeal is therefore manifestly inadmissible.

The fourth ground of appeal

38 The fourth ground of appeal, which is also put forward in the alternative, alleges infringement of the principle of the protection of legitimate expectations. By that ground of appeal, the appellant claims that the General Court erred in considering that the contested decision must be deemed to have been notified to it on 20 December 2013, the date of receipt of EUIPO’s fax communicating that decision, after considering that its representative should have confirmed that no notification by fax had been made by EUIPO during the breakdown affecting its fax machine. EUIPO’s communication of 18 December 2013 confirming that the appellant had agreed that notifications should be sent to it by electronic means of communication gave rise to a legitimate expectation on the part of the appellant that all communications after 18 December 2013 would be addressed to it by those means, with the result that its representative had no reason to confirm whether EUIPO had sent a notification by fax during the period of failure of his photocopier, that confidence being further strengthened by his receiving several electronic communications from EUIPO between 18 and 20 December 2013.

39 It must be noted that, having regard to the objection of inadmissibility of the appeal against the contested decision, on account of the fact that it was out of time, put forward by EUIPO, the General Court gave the appellant the option of submitting its observations. In the context of those observations, the appellant did not rely on the principle of the protection of legitimate expectations. Having been presented for the first time in the context of the present appeal, that ground of appeal is, accordingly, manifestly inadmissible (see, by analogy, order of 18 January 2005 in Zuazaga Meabe v OHIM, C‑325/03 P, EU:C:2005:28, paragraph 24).

40 Since all of the grounds of appeal put forward in support of the appeal are manifestly unfounded or manifestly inadmissible, the appeal must be dismissed.

Costs

41 Under Article 137 of the Rules of Procedure of the Court, which applies to appeal proceedings by virtue of Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. In the present case, as this order has been adopted without the appeal having been notified to the defendant, the appellant must be ordered to bear its own costs.

On those grounds, the Court (Eighth Chamber) hereby orders:

1. The appeal is dismissed.

2. Monster Energy Company shall bear its own costs.

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