CELEX: 62015CO0602
Language: en
Date: 2016-05-04 00:00:00
Title: Order of the Court (Eighth Chamber) of 4 May 2016.#Monster Energy Company v European Union Intellectual Property Office.#Appeal — Article 181 of the Rules of Procedure — EU trade mark — Grounds which are manifestly inadmissible or manifestly unfounded.#Case C-602/15 P.

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.
      [Signatures]
      * Language of the case: English.