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

ORDER OF THE GENERAL COURT (Eighth Chamber)

16 September 2019 (*)

(EU trade mark — Opposition proceedings — Application for EU word mark lovebook — Earlier EU word marks FACEBOOK and BOOK and earlier EU figurative mark FACEBOOK — Article 173(1) of the Rules of Procedure of the General Court — Intervention by the other party to the proceedings before the Board of Appeal — Response lodged by e-Curia — Article 56a(4) of the Rules of Procedure — Supporting documents required for the validation of the access account — Late submission — No unforeseeable circumstances — Manifest inadmissibility — Admissibility of the new response)

In Case T‑728/18,

Brand IP Licensing Ltd, established in Tortola (British Virgin Islands), represented by J.S. MacKenzie, Solicitor,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by L. Rampini, acting as Agent,

defendant,

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

Facebook, Inc., established in Menlo Park, California (United States), represented by Y. Zhou, Solicitor,

ACTION brought against the decision of the Second Board of Appeal of EUIPO of 2 October 2018 (Case R 2279/2017-2), relating to opposition proceedings between Facebook, Inc. and Brand IP Licensing Ltd,

THE GENERAL COURT (Eighth Chamber),

composed of A.M. Collins (Rapporteur), President, M. Kancheva and G. De Baere, Judges,

Registrar: E. Coulon,

makes the following

Order

1        By application lodged at the Court Registry on 6 December 2018, the applicant, Brand IP Licensing Ltd, brought an action for annulment of the decision of the Second Board of Appeal of EUIPO of 2 October 2018 (Case R 2279/2017-2).

2        In accordance with Article 178(3) of the Rules of Procedure of the General Court, the application was served on the other party to the proceedings before the Board of Appeal of EUIPO, Facebook Inc., by letter from the Registrar of the Court dated 15 January 2019, of which Facebook acknowledged receipt on 21 January 2019.

3        By response lodged at the Court Registry on 15 March 2019, Facebook applied to participate, as intervener, in the proceedings before the Court.

4        Facebook claims that the Court should:

–        dismiss the action;

–        uphold the decision of the Second Board of Appeal of 2 October 2018;

–        order the applicant to pay the costs incurred by Facebook before the Court.

5        On 1 April 2019, Facebook lodged a new response.

6        In accordance with Article 173(1) of the Rules of Procedure, a party to the proceedings before the Board of Appeal other than the applicant may participate, as intervener, in the proceedings before the Court by responding to the application in the manner and within the time limit prescribed. 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 (orders of 18 March 2016, Sociedad agraria de transformación No 9982 Montecitrus v OHIM — Spanish Oranges (MOUNTAIN CITRUS SPAIN), T‑495/15, not published, EU:T:2016:179, paragraph 8, and of 7 December 2016, Claranet Europe v EUIPO — Claro (claranet), T‑129/16, not published, EU:T:2016:728, paragraph 8).

7        In the absence of any provisions in the Statute of the Court of Justice and the Rules of Procedure of the General Court expressly governing certain aspects of dealing with interventions in intellectual property proceedings, the procedural provisions of Articles 19 and 144 of those rules of procedure must apply by analogy (see orders of 15 May 2012, Fercal v OHIM — Parfums Rochas (PATRIZIA ROCHA), T‑360/11, not published, EU:T:2012:238, paragraph 9, and of 18 March 2016, Sociedad agraria de transformación No 9982 Montecitrus v OHIM — Spanish Oranges (MOUNTAIN CITRUS SPAIN), T‑495/15, not published, EU:T:2016:179, paragraph 9).

8        Under Article 19 of the Rules of Procedure, read in conjunction with Article 144(5) and (6) thereof, the President must decide on the application to intervene by order or must refer the application to the Court. The order must be reasoned if the application is refused.

9        In accordance with Article 56a(4) of the Rules of Procedure, if a procedural document is lodged via e-Curia before the supporting documents required for validating the access account have been produced, those supporting documents must be received in paper format at the Court Registry within 10 days of the procedural document being lodged. That time limit may not be extended and Article 60 of the Rules of Procedure does not apply. If the supporting documents are not received within the prescribed time limit, the Court must declare inadmissible the procedural document lodged via e-Curia.

10      In the light of the foregoing, it is, therefore, for the Eighth Chamber of the Court to decide whether, in the present case, by lodging its response on 15 March 2019, Facebook may be granted leave to participate as intervener in the proceedings before the Court, pursuant to Article 173(1) of the Rules of Procedure.

11      In that regard, it must be noted that Facebook lodged a response by e-Curia on 15 March 2019 before the supporting documents required to validate its access account were produced.

12      On 26 March 2019, that is after the 10-day time limit provided for in Article 56a(4) of the Rules of Procedure, the required supporting documents were received by the Registry in paper format.

13      On 28 March 2019, the Registry informed Facebook that it had failed to lodge the required supporting documents within the 10-day time limit provided for in Article 56a(4) of the Rules of Procedure and invited it to submit its observations by 11 April 2019 on the non-compliance with that provision.

14      In its observations, lodged at the Registry on 11 April 2019, Facebook claimed the existence of unforeseeable circumstances. It stated that it had sent the necessary supporting documents on 19 March 2019 using the ‘Royal Mail International Tracked & Signature Parcel Services’. According to the terms and conditions of that postal service, the documents in question should have been received at the Registry within the following three to four working days. Consequently, Facebook considers that it took all reasonable steps to ensure that those documents reached the Registry within the required time limit and, therefore, that it could not be held responsible for non-compliance with that time limit.

15      In accordance with the second paragraph of Article 45 of the Statute of the Court of Justice, applicable to the procedure before the General Court in accordance with the first paragraph of Article 53 of that statute, no derogation from the procedural time limits may be made save where the circumstances are quite exceptional, in the sense of being unforeseeable or amounting to force majeure (see order of 30 September 2014, Faktor B. i W. Gęsina v Commission, C‑138/14 P, not published, EU:C:2014:2256, paragraph 17 and the case-law cited). Under that article, it is for the party relying on unforeseeable circumstances or force majeure to prove their existence.

16      The Court of Justice has held that the concept of unforeseeable circumstances contains an objective element relating to abnormal circumstances unconnected with the person concerned and a subjective element involving the obligation, on his part, to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices. In particular, the person concerned must pay close attention to the course of the procedure set in motion and, amongst other things, demonstrate diligence in order to comply with the prescribed time limits. Thus, the concept of unforeseeable circumstances does not apply 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 procedural time limit (see order of 12 July 2016, Vichy Catalán v EUIPO, C‑399/15 P, not published, EU:C:2016:546, paragraph 24 and the case-law cited).

17      Moreover, to be classed as an unforeseeable circumstance, an event must be inevitable so that it becomes the decisive cause of the failure to comply with the time limit (see, to that effect, order of 30 September 2014, Faktor B. i W. Gęsina v Commission, C‑138/14 P, not published, EU:C:2014:2256, paragraph 20).

18      In the present case, it should be noted that slowness alone in the delivery of mail, in the absence of other specific circumstances, such as an administrative breakdown, a natural disaster or a strike, cannot in itself constitute an unforeseeable circumstance or force majeure beyond Facebook’s control (see, to that effect, order of 30 September 2014, Faktor B. i W. Gęsina v Commission, C‑138/14 P, not published, EU:C:2014:2256, paragraph 23).

19      In addition, it must be stated that Facebook allowed almost half the time it had available to pass before entrusting the postal service of its choice with the supporting documents required for validating the e-Curia account. It must, therefore, be found that Facebook did not exercise all the diligence required of a normally prudent person. This is all the more so since the conditions of use of the e-Curia application expressly point out that, if the necessary supporting documents do not reach the Court Registry within 10 days of the date on which the procedural document was lodged by e-Curia, the Court must declare that procedural document inadmissible.

20      It follows that the existence of unforeseeable circumstances or of force majeure has not been established and that, therefore, the lodging Facebook’s response by e-Curia on 15 March 2019 does not meet the requirements of Article 56a(4) of the Rules of Procedure.

21      Consequently, that response must be rejected as manifestly inadmissible, and there is no need for the response to be notified to the applicant and EUIPO.

22      Since the response of 15 March 2019 was not lodged in accordance with Article 173(1) and Article 179 of the Rules of Procedure, Facebook cannot be granted leave to participate as intervener in the proceedings in Case T‑728/18 on the basis of that response.

23      However, that refusal to grant Facebook the status of intervener is without prejudice to the inferences to be drawn from its lodging of a new response on 1 April 2019. Since that document was lodged within the time limit of two months prescribed by Article 179 of the Rules of Procedure, extended on account of distance by a single period of 10 days under Article 60 of the Rules of Procedure, that new response must be considered admissible. Consequently, Facebook must be granted leave to participate as intervener in the proceedings in Case T‑728/18, pursuant to Article 173(1) of the Rules of Procedure, on the basis of that new response.

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby orders:

1.      The response lodged by Facebook, Inc. on 15 March 2019 is inadmissible.

2.      Facebook is not granted leave to participate in the proceedings in Case T‑728/18 as intervener pursuant to Article 173(1) of the Rules of Procedure of the General Court on the basis of the response lodged on 15 March 2019 but on the basis of the response lodged on 1 April 2019.

3.      The costs are reserved.

Luxembourg, 16 September 2019.

*      Language of the case: English.

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