Court of Justice of the European Communities (including Court of First Instance Decisions)

ORDER OF THE GENERAL COURT (Fourth Chamber)

10 November 2011 (*)

(Community trade mark - Article 134(1) of the Rules of Procedure - Intervention by the other party to the proceedings before the Board of Appeal - Response lodged out of time - Rejection)

In Case T-165/11,

Stichting Regionaal Opleidingencentrum van Amsterdam, established in Amsterdam, represented by R.M.R. van Leeuwen, lawyer,

applicant,

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by A. Folliard-Monguiral, acting as Agent,

defendant,

the other party to the proceedings before the Board of Appeal of OHIM being

Investimust SA, established in Geneva (Switzerland),

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 12 January 2011 (Case R 508/2010-4), concerning invalidity proceedings between Stichting Regionaal Opleidingencentrum van Amsterdam and Investimust SA,

THE GENERAL COURT (Fourth Chamber),

composed of I. Pelikánová, President, K. Jürimäe and M. van der Woude (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Order

1 Investimust SA is the proprietor of the Community word mark COLLEGE, registered at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), pursuant to Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)).

2 On 19 June 2008, the applicant, Stichting Regionaal Opleidingencentrum van Amsterdam, submitted an application to OHIM for a declaration of invalidity of that Community trade mark, pursuant to Article 51(1)(a) of Regulation No 40/94 (now Article 52(1)(a) of Regulation No 207/2009).

3 The application for a declaration of invalidity having been rejected by the Cancellation Division, the applicant filed a notice of appeal at OHIM against that decision, pursuant to Articles 58 to 64 of Regulation No 207/2009.

4 By decision of 12 January 2011, the Fourth Board of Appeal of OHIM dismissed the appeal.

5 By application lodged at the Registry of the Court on 11 March 2011, the applicant brought an action for annulment of the abovementioned decision of the Board of Appeal.

6 In accordance with Article 133(2) of the Rules of Procedure of the General Court, the application was served on Investimust SA by a letter from the Court Registrar of 19 April 2011, receipt of which was acknowledged by Investimust SA on 22 April 2011.

7 Under the first subparagraph of Article 135(1) of the Rules of Procedure, OHIM and the other party to the proceedings before the Board of Appeal have a period of two months from the service of the application to submit their responses.

8 That period is to be extended on account of distance by a single period of 10 days under Article 102(2) of the Rules of Procedure. Furthermore, pursuant to the first subparagraph of Article 101(2) of the Rules of Procedure, if a period would otherwise end on a Saturday, Sunday or official holiday, it is to be extended until the end of the first following working day.

9 The initial period for submitting the response expired at midnight on 2 July 2011, that is, on a Saturday, with the result that the end of the period for lodging the response was postponed to midnight on 4 July.

10 However, Investimust SA sent its response to the Registry of the Court by fax on 21 June 2011. Under Article 43(6) of the Rules of Procedure, the date on which a copy of the signed original of a pleading is received at the Registry of the Court by fax is to be deemed to be the date of lodgment for the purposes of compliance with the time-limits for taking steps in proceedings only if the signed original of the pleading is lodged at the Registry no later than 10 days after receipt of that fax. Consequently, in the present case, the period for lodging the original of the response expired at midnight on 1 July 2011.

11 The signed original of Investimust SA's response was not lodged at the Registry of the Court until 25 July 2011.

12 Clearly, that lodgment took place after the expiry of the period of 10 days referred to in paragraph 10 above and that fact precludes the date on which the response was sent by fax from being taken into consideration.

13 Accordingly, it must be concluded that that response was lodged out of time.

14 Under Article 134(1) of the Rules of Procedure, the parties to the proceedings before the Board of Appeal other than the applicant may participate in the proceedings before the General Court as interveners by responding to the application in the manner and within the period prescribed.

15 As is recognised in the second paragraph of Article 53 of the Statute of the Court of Justice of the European Union, litigation in the field of intellectual property presents specific features which require derogation from certain provisions governing proceedings before the General Court. The specific provisions of Title IV of the Rules of Procedure concerning proceedings relating to intellectual property rights have been adopted in order to take account of those specific features. One such feature is the fact that such litigation involves, so far as opposition proceedings are concerned, disputes between private persons. To that end, specific rules on interveners, in particular, were adopted (see, to that effect, Case T-94/02 Boss v OHIM - Delta Biomichania Pagatou (BOSS) [2004] ECR II-813, paragraph 17).

16 In the absence of any provisions in the Statute of the Court of Justice and the Rules of Procedure expressly governing certain aspects of the treatment of interventions in respect of proceedings relating to intellectual property, the procedural provisions laid down in Articles 115 and 116 of the Rules of Procedure should be applied by analogy (see, by analogy, BOSS, paragraph 27; order of 19 June 2009 in Case T-361/08 Peek & Cloppenburg and van Graaf v OHIM - Queen Sirikit Institute of Sericulture (Thai Silk), not published in the ECR, paragraph 9; and order of 26 May 2011 in Case T-527/10 Google v OHIM - G-mail (GMail), not published in the ECR, paragraph 12).

17 Under the third subparagraph of Article 116(1) of the Rules of Procedure, the President is to decide on the application to intervene by order or is to refer the decision to the General Court. The order must be reasoned if the application is dismissed.

18 The President of the Fourth Chamber of the Court referred to the Chamber the question whether, in the circumstances of the present case, Investimust SA may be allowed to participate in the proceedings before the Court as an intervener under Article 134(1) of the Rules of Procedure.

19 According to case-law, as the time-limits laid down in Articles 115 and 116 of the Rules of Procedure are mandatory and as observance thereof is a matter of public policy they are not within the discretion of either the parties or even the Court (see, to that effect, Case T-194/95 INTV II Area Cova and Others v Council [1996] ECR II-343, paragraph 2, and Case T-201/04 Microsoft v Commission [2005] ECR II-1491, paragraph 42).

20 Furthermore, compliance with the time-limits laid down for submitting an application to intervene makes it possible to ensure that there is a fair balance between the fundamental right to intervene in proceedings and the sound administration of justice (see, by analogy, order of the President of 15 July 2011 in Case T-213/11 P(I) College of Staff Representatives of the EIB and Others v Bömcke, not published in the ECR, paragraph 22).

21 In the present case, Investimust SA's response was lodged after the expiry of the period provided for in the first subparagraph of Article 135(1) of the Rules of Procedure. Clearly, therefore, the application to intervene implicitly contained in that response was submitted out of time.

22 Furthermore, Investimust SA did not provide any information from which it might be inferred that the delay in lodging the response was covered by the second paragraph of Article 45 of the Statute of the Court of Justice, under which no right is to 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.

23 Indeed, in response to a request from the Court inviting Investimust SA to submit its observations regarding the late lodgment of its response, Investimust SA merely stated that, due to a misunderstanding of the relevant procedural rules and formalities, it had thought it was able to keep the original of the response. Such an error does not constitute unforeseeable circumstances or force majeure. Moreover, Investimust SA has not even claimed that its error was excusable.

24 It is apparent from the foregoing that Investimust SA may not be granted leave to participate in the proceedings in Case T-165/11 as an intervener under Article 134(1) of the Rules of Procedure.

Costs

25 Under Article 87(1) of the Rules of Procedure, a decision as to costs is to be given in the final judgment or in the order which closes the proceedings. Since this order closes the proceedings as regards Investimust SA, a decision as to the costs relating to its intervention must be given.

26 Since this order was adopted before the parties were able to incur costs connected with the procedural activity of Investimust SA, it is sufficient to decide that the latter should bear its own costs.

On those grounds,

THE GENERAL COURT (Fourth Chamber)

hereby orders:

1. Investimust SA is refused leave to participate in the proceedings in Case T-165/11 as an intervener under Article 134(1) of the Rules of Procedure of the General Court.

2. Investimust SA shall bear its own costs.

Luxembourg, 10 November 2011.

** Language of the case: English.

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