EN Official Journal of the European Union C 260/22

Appeal brought on 14 June 2013 by Fercal — Consultadoria e Serviços, Lda against the judgment delivered on 10 April 2013 by the General Court (Fifth Chamber) in Case T-360/11 Fercal — Consultadoria e Serviços v OHIM — Parfums Rochas (Patrizia Rocha)

(Case C-324/13 P)

2013/C 260/39

Language of the case: Portuguese

Parties

Appellant: Fercal — Consultadoria e Serviços, Lda (represented by: A.J. Rodrigues, advogado)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

Form of order sought

The appellant claims that the Court of Justice should:

— set aside the judgment of 10 April 2013 of the Fifth Chamber of the General Court, notified on 11 April 2013, in Case T-360/11 and, consequently, annul the decision of the Second Board of Appeal of OHIM of 8 April 2011 in Case … R2355/2010-2 in annulment proceedings No 2004 C, in accordance with the relevant provisions of European Union law;

— declare that the appellant’s mark is still valid and in force;

— order the respondent to pay the costs of the proceedings.

Grounds of appeal and main arguments

Article 60 of Regulation No 207/2009 (1) provides, in relation to the lodging and form of an appeal, that a notice of appeal must be filed in writing within two months and that, within four months after the date of notification of the decision, a written statement setting out the grounds of appeal must be filed.

The appellant submits that, although sent by mail on 27 January 2011, the grounds of appeal were received on 2 February 2011, that is to say outside of the four-month time limit provided for in Article 60 of Regulation No 207/2009.

The rules relating to the calculation of time limits and to notification are set out in Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).

Pursuant to Rule 70(1) and (2) thereof, when calculated in terms of days, weeks, months or years, calculation shall start on the day following notification, namely the day of actual receipt of the document notified.

Where the time limit is given in months, as in the present case, the time limit shall expire in the relevant month four months later on the day which has the same number as date of notification (Rule 70(4)).

In the event of unforeseen circumstances or force majeure unattributable to either party, the time limit shall be suspended.

In the present case, since the appellant was notified on 27 September 2010 and was provided with four months within which to file a notice of appeal, the time limit commenced on 28 September 2010 and ended four months later on the same day, namely on 28 January 2011.

Consequently, the appellant filed its notice of appeal within that time limit so as not to risk losing its rights, that is to say that its time limit was shorter than four months.

The appellant filed a notice or appeal setting out its grounds of appeal by mail on 27 January 2011, namely on the day prior to the final day of the time limit.

The respondent received the above on 2 February 2011, since there was a weekend in between.

The appellant submits that it complied with the relevant provisions of law and the time limit with which it was provided to file its notice of appeal, and thus deems its appeal to be admissible.

In that respect, it claims that the notice of appeal was filed within the two-month time limit (first part of Article 60 of Regulation No 207/2009).

It adds that the grounds of appeal were submitted in writing within the four-month time limit.

Moreover, they were sent by post and were thus no longer in the appellant’s hands.

The ‘filing’ of a notice of appeal, referred to in the judgment under appeal, cannot in any way — with all due respect to alternative interpretations and opinions — be understood as receipt by the respondent, unless the appellant fails to comply with the prescribed time limit.

Contrary to the what was held in the judgment under appeal, Article 60 of Regulation No 207/2009 indeed refers to the filing of a ‘statement setting out the grounds of appeal within four months’, but that cannot be taken to mean, and does not mean, that such grounds must also be received within that time limit, since such documents are not always received immediately.

The appellant is required to comply with its obligation within that time limit, which it indeed did. The date of reception can thus not be regarded as the relevant date, since such an interpretation contravenes the principle of equality in the light of the diversity of countries and the fact that the same means of communication may not be available nor required, and constitute alternatives which are consistent with Regulation No 2868/95.

The appellant claims that it is required to send or file its grounds of appeal within the four-month time limit, and the filing of its grounds of appeal was not surprising in the present case, since the appellant had already expressed its intention to do so.

Having decided as it did, namely in dismissing its action in its entirety, the General Court infringed Article 60 of Regulation No 207/2009 and Rules 61, 62, 63, 64, 65 and 70 of Regulation No 2868/95.

(1) Council Regulation No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).