Case C-426/10 P: Appeal brought on 26 August 2010 by Bell & Ross BV against the order of the General Court (Sixth Chamber) delivered on 18 June 2010 in Case T-51/10 Bell & Ross BV v OHIM
Date: 2010-08-26
Institutions: Court of Justice
Subjects: European Union Intellectual Property Office, action for annulment, documentation








C_2010346EN.01002801.xml










18.12.2010   


EN


Official Journal of the European Union


C 346/28





Appeal brought on 26 August 2010 by Bell & Ross BV against the order of the General Court (Sixth Chamber) delivered on 18 June 2010 in Case T-51/10 Bell & Ross BV v OHIM

(Case C-426/10 P)
()
2010/C 346/46
Language of the case: French

Parties


Appellant: Bell & Ross BV (represented by: S. Guerlain, lawyer)

Other parties to the proceedings: Office for Harmonization in the Internal Market (trade marks and designs), Klockgrossisten i Norden AB

Form of order sought







—


annul the contested order;










—


declare that the action brought by the applicant for annulment of a decision of the Office for Harmonization in the Internal Market (trade marks and designs) (OHMI) (T-51/10) is admissible and, consequently, refer the case back to the General Court to rule on the substance of that action for annulment;










—


order OHIM to pay the costs of the appeal and of the proceedings at first instance.





Pleas in law and main arguments

The applicant relies on six grounds in support of its appeal.
By its first ground of appeal, Bell & Ross claims that the General Court infringed Article 111 of its Rules of Procedure in that the General Court held that the action was manifestly inadmissible without first having heard the Advocate General.
By its second ground of appeal, the applicant alleges that the General Court infringed Article 43(1) of its Rules of Procedure, in that the General Court ruled that the original texts of the application received by the Registry on 1 February 2010 were not original, and that solely the text received on 5 February 2010, and therefore out of time, could be regarded as an original text, but did not however explain how the originals can be distinguished from the copies. Article 43 does not specify what rules apply to the lawyer’s signature which must be appended to the original of a pleading.
By its third ground of appeal, Bell & Ross complains that the General Court did not allow it to put in order, in accordance with Article 57(b) of the Practice Directions to parties and Article 7.1 of the Instructions to the registrar of the General Court, the formal irregularity attributed to it. In accordance with those provisions, it is the duty of the Registrar to allow the applicant a period of time to make good the discovered irregularity.
By its fourth ground of appeal, Bell & Ross relies on excusable error, since the confusion regarding the identification of the original text was caused by exceptional circumstances which were not under the applicant’s control. The facts that the large number of copies required the assistance of an external service provider, that the excellent quality of the paper copies made it impossible to recognise the original and that the signature was appended all of the texts sent to the registry within the time prescribed, constitute circumstances which allow a finding of excusable error to be made in this case.
By its fifth ground of appeal, the applicant relies on the fact that the circumstances were exceptional, abnormal and not under the trader’s control, evidence of unforeseeable circumstances or force majeure.
Finally, by its sixth and last ground of appeal, Bell & Ross claims that the General Court infringed the principles of proportionality and protection of legitimate expectations since, first, seven texts bearing a signature and one fax copy were received at the registry of the General Court and, second, the abovementioned provisions provide for the possibility of regularisation of the application.