Rule 61(2) of Regulation No 2868/95, implementing Regulation No 40/94 on the Community trade mark, as amended, provides that notifications to be made by OHIM may be effected by fax. Notification by fax may be employed for any OHIM decision, and thus also includes decisions of the boards of appeal.

Rule 65(1) of Regulation No 2868/95, headed ‘Notification by [fax] and other technical means’, states that ‘[n]otification shall be deemed to have been taken place on the date on which the communication was received by the [fax machine] of the recipient’. Rule 70(2) of Regulation No 2868/95, entitled ‘Calculation of time-limits’, provides that ‘[w]here that procedural step is a notification, the event considered [to set time running] shall be the receipt of the document notified, unless otherwise provided’.

The case-law draws a distinction between, first, the transmission of a document to the addressee, which is required for due notification, and, secondly, effective knowledge of that document, which is not required for the notification to be regarded as a due notification. According to that case-law, the validity of a notification to the addressee is in no way conditional on its having been actually brought to the notice of the person competent to deal with it under the internal rules of the entity addressed. Due notification of a decision has been effected once it has been communicated to the addressee and the addressee is in a position to take cognisance of it. Thus, in order to assess the validity of a notification, only its external aspect is taken into consideration, that is to say, due transmission to the addressee, rather than its internal aspect, which concerns the internal functioning of the entity addressed.

It follows that, in order to determine the date of receipt of a notification, account should be taken only of the external aspect of the notification, that is to say, whether it was received in a formal and proper manner by the entity addressed, irrespective of whether that entity effectively received and took cognisance of the notification. That conclusion is not called into question by the requirement established in the case-law under which due notification requires the addressee to be in a position to take cognisance of it. That requirement places an obligation on the notifier to create the conditions necessary for the addressee to effectively take cognisance of the notification, that is to say, an obligation to use best endeavours (which corresponds with the external aspect of the notification) rather than an obligation on the notifier to interfere in the internal functioning of the entity addressed in order to ensure it has actually taken cognisance of the notification, that is to say, an obligation to achieve a specific result (which corresponds with the internal aspect of the notification).

The General Court has thus held that the production, by OHIM, 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.

Furthermore, if only actual knowledge of the fax at issue were sufficient to prove that it had been received by the representative of the applicant, even where a decision had been duly notified to the addressee, it would be impossible for OHIM to adduce evidence of effective notification of the decision and of the date on which it had been received by the addressee. The starting point of the period prescribed for instituting proceedings against a decision of an OHIM board of appeal would depend on fortuitous circumstances, unrelated to the diligence with which OHIM notified the decision, whereas the specific purpose of establishing time-limits for instituting proceedings is to establish legal certainty.

(see paras 14, 15, 19-22)