Source: EURLEX
Language: en
Format: md

ORDER OF THE COURT (Eighth Chamber)

21 September 2011 ([\*](#Footnote*))

(Appeal – Community trade mark – Proceedings before the Board of Appeal of OHIM – Failure to comply with the obligation to pay the appeal fee within the period prescribed – Decision of the Board of Appeal declaring that the appeal is deemed not to have been filed)

In Case C‑378/11 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 17 June 2011,

**Longevity Health Products, Inc.,** established in Nassau (Bahamas), represented by J. Korab, Rechtsanwalt,

appellant,

the other parties to the proceedings being:

**Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM),**

defendant at first instance,

**Biofarma SA,** established in Neuilly-sur-Seine (France),

party to the proceedings before the Board of Appeal of OHIM,

THE COURT (Eighth Chamber),

composed of K. Schiemann, President of the Chamber, C. Toader (Rapporteur) and E. Jarašiūnas, Judges,

Advocate General: P. Cruz Villalón,

Registrar: A. Calot Escobar,

after hearing the Advocate General,

makes the following

**Order**

1        By its appeal, Longevity Health Products, Inc. seeks to have set aside the order of the General Court of the European Union
of 15 April 2011 in Case T-95/11 *Longevity Health Products* v *OHIM – Biofarma (VITACHRON male)* (‘the order under appeal’), by which that court dismissed its action against the decision of the Fourth Board of Appeal of
the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 10 January 2011 (Case R 1356/2010-4),
relating to opposition proceedings between Biofarma SA (‘Biofarma’) and Longevity Health Products, Inc. (‘the contested decision’).

**Legal context**

2        Article 60 of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1), provides:

‘… The notice shall be deemed to have been filed only when the fee for appeal has been paid. Within four months after the
date of notification of the decision, a written statement setting out the grounds of appeal must be filed.’

3        Under Rule 49(3) of 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):

‘If the fee for appeal has been paid after expiry of the period for the filing of appeal pursuant to Article [60] of Regulation
[No 207/2009], the appeal shall be deemed not to have been filed and the appeal fee shall be refunded to the appellant.’

**The contested decision and the order under appeal**

4        On 29 June 2009, the applicant at first instance – Longevity Health Products, Inc. – filed an application with OHIM for registration
of the word sign ‘VITACHRON MALE’ as a Community trade mark.

5        On 22 September 2009, Biofarma filed a notice of opposition under Article 41 of Regulation No 207/2009 against registration
of the mark at issue in respect of the goods in one of the classes for which the application had been filed. Biofarma based
its opposition on the Benelux word mark VITATHION, registered under number 438 983.

6        By decision of 30 June 2010, the Opposition Division upheld the opposition in its entirety.

7        On 20 July 2010, Longevity Health Products filed a notice of appeal with OHIM against that decision.

8        By the contested decision, after establishing that the appeal fee had not been paid and that Longevity Health Products had
not taken any action in response to a request of 2 September 2010 from the Registry of OHIM, informing it of that fact and
calling upon it to submit its observations within one month, the Fourth Board of Appeal of OHIM found that the appeal had
to be deemed not to have been filed, pursuant to the second sentence of Article 60 of Regulation No 207/2009 and to Rule 49(3)
of Regulation No 2868/95. Consequently, the Board of Appeal did not rule on the substance of the appeal.

9        By application lodged at the Registry of the General Court on 16 February 2011, Longevity Health Products claimed that the
General Court should annul the contested decision.

10      By the order under appeal, the General Court dismissed the action as, in part, manifestly lacking any foundation in law and,
in part, manifestly inadmissible.

11      In paragraphs 14 and 15 of that order, the General Court observed that, in support of its action Longevity Health Products
had essentially claimed that the Board of Appeal had refused to rule on the substance of the case and, specifically, on the
likelihood of confusion relied on by Biofarma, but had not set out any complaint in relation to the finding made by the Board
of Appeal concerning the non-payment of the appeal fee provided for in Article 60 of Regulation No 207/2009.

12      In that connection, the General Court found, first, that since that finding had not been called into question in the action
for annulment before it, it had to be regarded as undisputed that the appeal fee had not been paid before expiry of the time-limit
for the filing of an appeal and, second, that Longevity Health Products had not relied on any unforeseeable circumstances
or *force majeure* that might, where appropriate, have justified that failure.

13      The General Court also found that the Board of Appeal had properly applied Article 60 of Regulation No 207/2009 and Rule 49(3)
of Regulation No 2868/95 when it found that the appeal had to be deemed not to have been filed.

14      In those circumstances, the General Court held that, in so far as Longevity Health Products claimed that the Board of Appeal
had not ruled on the substance of the case, the action had to be dismissed as clearly lacking any foundation in law. In addition,
in so far as Longevity Health Products had requested the Court to examine the substance of the case itself, the action had
to be dismissed as manifestly inadmissible.

**The appeal**

15      Under Article 119 of the Rules of Procedure of the Court of Justice, where the appeal is clearly inadmissible or clearly unfounded,
the Court may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, dismiss the
appeal by reasoned order.

16      According to settled case-law, it follows from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court
of Justice of the European Union and Article 112(1)(c) of its Rules of Procedure that an appeal must indicate precisely the
contested elements of the judgment or order which the appellant seeks to have set aside, and also the legal arguments specifically
advanced in support of the appeal. That requirement is not satisfied by an appeal which, without even including an argument
specifically identifying the error of law allegedly vitiating the judgment or order under appeal, confines itself to reproducing
the pleas in law and arguments previously submitted to the General Court. Such an appeal amounts in reality to no more than
a request for a re‑examination of the application submitted to the General Court, which the Court of Justice does not have
jurisdiction to undertake (see, inter alia, judgment of 9 June 2011 in Case C-401/09 P *Evropaïki Dynamiki* v *ECB* [2011] ECR I‑0000, paragraph 55 and the case-law cited).

17      In the present appeal, Longevity Health Products merely repeats verbatim the arguments, put forward in the action for annulment,
relating to the alleged absence of any likelihood of confusion between the sign which it sought to have registered and Bioforma’s
mark. Longevity Health Products also submits that the reasoning at first instance is defective in that the General Court failed
to examine those arguments, simply finding that the similarity between the two signs at issue was sufficient to justify the
conclusion that such a likelihood of confusion existed.

18      However, it is clear that, contrary to those assertions, the General Court expressed no view whatsoever, in the order under
appeal, as to whether there was a likelihood of confusion; rather, as described in paragraphs 11 to 14 above, it dismissed
the action on the grounds that the Board of Appeal had properly found that the appeal before it had to be deemed not to have
been filed and that the request by Longevity Health Products for the Court to examine the substance of the case itself was
clearly inadmissible.

19      In those circumstances, it is apparent that, in actual fact, the appeal consists in simply reproducing the arguments which
Longevity Health Products had put forward at first instance and on which, for reasons that are not open to criticism, the
General Court declined to rule.

20      The appeal must therefore be dismissed as clearly inadmissible.

**Costs**

21      Article 69(1) of the Rules of Procedure, which applies to the procedure on appeal by virtue of Article 118 thereof, provides
that a decision as to costs is to be given in the order which closes the proceedings.

22      As the present order was adopted prior to notification of the application to the defendant and, therefore, before the latter
could have incurred costs, it is sufficient to decide that the appellant must bear its own costs.

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

1.      **The appeal is dismissed.**

2.      **Longevity Health Products, Inc. shall bear its own costs.**

[Signatures]

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[\*](#Footref*) Language of the case: English.

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