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

JUDGMENT OF THE GENERAL COURT (Sixth Chamber)

20 January 2021 (*)

(Community design – Application for a Community design representing an air freshener – Non-compliance with a time limit vis-à-vis EUIPO – Application for restitutio in integrum – Article 67(1) of Regulation (EC) No 6/2002 – Duty of care)

In Case T‑276/20,

Jeffrey Scott Crevier, residing in Fort Lauderdale, Florida (United States), represented by M. Kime, Barrister,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by R. Cottrell, A. Folliard-Monguiral and V. Ruzek, acting as Agents,

defendant,

ACTION brought against the decision of the Third Board of Appeal of EUIPO of 2 March 2020 (Case R 2396/2019-3) relating to an application for restitutio in integrum.

THE GENERAL COURT (Sixth Chamber),

composed of A. Marcoulli, President, S. Frimodt Nielsen (Rapporteur) and C. Iliopoulos, Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Court Registry on 11 May 2020,

having regard to the response lodged at the Court Registry on 23 September 2020,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

gives the following

Judgment

 Background to the dispute

1        On 21 September 2018, the applicant, Mr Jeffrey Scott Crevier, filed an application for registration of a Community design representing an air freshener with the European Union Intellectual Property Office (EUIPO) pursuant to Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1). The application was accompanied by seven views of the design at issue and claimed the priority for American design application No 29 641 525, filed on 22 March 2018.

2        By a communication of 4 October and again by a communication of 12 December 2018 (‘the deficiency notice’), the examiner informed the applicant that that application was deficient as regards certain views attached to it and asked him to remedy those deficiencies.

3        On 4 October 2018, the examiner had also raised a deficiency with regard to the application for priority, which could not be granted in the absence of a complete copy of the earlier application, but that deficiency was rectified on 30 November 2018, when EUIPO received a certified true copy of the US application, as the examiner informed the applicant on 12 December 2018.

4        The period prescribed for remedying deficiencies relating to certain views attached to the application for registration ended, taking account of the extension of five calendar days provided for by EUIPO’s internal rules in the event of communication by electronic means, on 17 February 2019.

5        On 28 February 2019, EUIPO received an electronic communication from the applicant’s professional representative (‘the representative before EUIPO’ or ‘the representative’), transmitted through the ‘user area’ of the account opened by the latter with EUIPO.

6        In that communication, the representative before EUIPO stated that he had telephoned EUIPO on 21 and 22 January 2019, first of all, to speak to the examiner, next, to find out how to respond to the deficiency notice, given the absence of a button ‘click to reply’ associated with the notification of that notice in the ‘user area’ of his EUIPO account, and, lastly, to request that he be called back. Furthermore, the representative before EUIPO claimed that, in the absence of such a call back, he had replied to the deficiency notice by letter sent to EUIPO by air mail on 22 January 2019 (‘the disputed letter’). He attached a copy of that letter as an annex to his communication of 28 February 2019.

7        EUIPO has stated that it did not receive the disputed letter before the letter had been communicated to it by the representative as a copy in an annex to the representative’s communication of 28 February 2019.

8        On 22 March 2019, the examiner rejected the application for registration pursuant to Article 10(4) of Commission Regulation (EC) No 2245/2002 of 21 October 2002 implementing Regulation No 6/2002 (OJ 2002 L 341, p. 28), on the ground that the applicant had not remedied the deficiencies within the time limit set.

9        On 22 May 2019, the applicant, on the basis of Article 67 of Regulation No 6/2002, filed an application for restitutio in integrum with EUIPO.

10      By decision of 27 September 2019, the examiner rejected that application on the ground that the representative before EUIPO had not taken all due care required by the circumstances.

11      On 25 October 2019, the applicant lodged an appeal seeking the annulment of that decision.

12      By decision of 2 March 2020 (‘the contested decision’), the Third Board of Appeal of EUIPO dismissed that appeal on the ground that one of the conditions laid down in Article 67 of Regulation No 6/2002 was not satisfied, as the representative before EUIPO had not taken all due care required by the circumstances. The Board of Appeal noted that EUIPO had not received the disputed letter. It also took the view that the duty of care fell, in the present case, to the representative before EUIPO and that the latter had not provided an adequate explanation as to why he would have sent that letter in haste without registering it in the outgoing mail log, thus leaving no trace of the letter actually having been posted by his firm, whereas almost three weeks remained before the expiry of the time limit set.

 Forms of order sought

13      The applicant claims that the Court should:

–        annul the contested decision;

–        annul the examiner’s decision of 22 March 2019;

–        order restitutio in integrum, or in the alternative, refer the case back to EUIPO, giving it appropriate instructions;

–        order EUIPO to pay the costs, including those incurred before the Board of Appeal.

14      EUIPO contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

15      The applicant relies, in essence, on a single plea in law, alleging, principally, infringement of Article 67(1) of Regulation No 6/2002 and of the principle of proportionality and, in the alternative, infringement of the principle of equal treatment. He claims that the Board of Appeal erred in finding that his representative before EUIPO, who is not the same as his representative before the General Court, had not taken all due care required by the circumstances. In that regard, the applicant submits, first, that the Board of Appeal distorted the evidence submitted to it and, second, that it disregarded the principles set out in the decision of the Fourth Board of Appeal of EUIPO of 25 May 2012 (Case R 1928/2011-4, Sun Park Holidays v Sunparks, ‘the Sun Park Holidays v Sunparks decision’).

 Preliminary observations on the requirement to take due care

16      In the words of Article 67(1) of Regulation No 6/2002, the applicant for or proprietor of a registered Community design or any other party to proceedings before [EUIPO] who, in spite of all due care required by the circumstances having been taken, was unable to observe a time limit vis-à-vis [EUIPO] is to, upon application, have his rights re-established if the non-observance in question has the direct consequence, by virtue of the provisions of this Regulation, of causing the loss of any rights or means of redress.

17      It is apparent from that provision that restitutio in integrum is subject to two requirements, the first being that the party has exercised all due care required by the circumstances, and the second that the non-observance by the party has the direct consequence of causing the loss of any right or means of redress (see judgment of 31 January 2019, Thun v EUIPO (Fish), T‑604/17, not published, EU:T:2019:42, paragraph 11 and the case-law cited).

18      Only the first of those two cumulative conditions is at issue here.

19      It is also apparent from Article 67(1) of Regulation No 6/2002 that the obligation to take due care falls in the first instance on the applicant for or proprietor of a Community design or any other party to proceedings before EUIPO. However, if those persons are represented, the representative is subject to the requirement to take due care just as much as those persons. Indeed, since the representative acts in the name of and on behalf of the applicant for or proprietor of a Community design or of any other party to proceedings before EUIPO, his acts must be considered as being those of those persons (see, to that effect, judgment of 31 January 2019, Poisson, T‑604/17, not published, EU:T:2019:42, paragraphs 18 and 19 and the case-law cited).

20      It should also be borne in mind that, according to the case-law, the expression ‘all due care required by the circumstances’ in Article 67(1) of Regulation No 6/2002 requires a system of internal control and monitoring of time limits to be put in place which generally excludes the involuntary non-observance of time limits. It follows that restitutio in integrum may be granted only in the case of exceptional events, which cannot therefore be predicted from experience (see judgment of 31 January 2019, Poisson, T‑604/17, not published, EU:T:2019:42, paragraph 31 and the case-law cited).

21      Furthermore, observance of time limits is a matter of public policy and restitutio in integrum is liable to undermine legal certainty. Consequently, the conditions for the application of restitutio in integrum must be interpreted strictly (see, by analogy, judgment of 19 September 2012, Video Research USA v OHIM (VR), T‑267/11, EU:T:2012:446, paragraph 35).

 Lack of vigilance on the part of the representative before EUIPO

22      In the present case, in order to reject the applicant’s arguments against the examiner’s decision rejecting his application for restitutio in integrum on the ground that his representative had not taken all due care required by the circumstances, the Board of Appeal found as follows:

‘19      The applicant claims that [the examiner] erred in rejecting the application for restitutio in integrum for lack of due care required by the circumstances on the part of the applicant’s representative [before EUIPO]. It argues that the representative did in fact post a reply to the deficiency notice of 12 December 2018 on 22 January 2019 by standard air mail, which would have arrived within 3 to 5 working days, i.e. well before the expiry of the time limit on 12 February 2019 but that it was through no fault of its representative but that of the [United Kingdom] and Spanish postal services that that letter was never delivered to [EUIPO].

20      It is common ground that on 12 December 2018, the applicant’s representative [before EUIPO] was informed of the deficiency in the representation of the Community design application.

21      The representative has explained the ensuing events as follows:

–        [the representative had] telephoned on 21 January 2019 … and 22 January 2019 … to speak with the [examiner] with a view to enquiring how to file a response [to the deficiency notice], because there was no ‘click to reply’ button associated with the communication in the ‘User Area’ online and requesting a call back;

–        when the representative’s last telephone call ended … the secretary responsible for sending letters had already left for the day;

–        having received no call back from [EUIPO], and since the secretary had gone home, the representative typed the reply to the deficiency notice himself, printed an address label, determined the correct postage by sizing and weighing the envelope. He verified the postage cost from the online website of the [United Kingdom] mail service, and put the appropriate stamps to the envelope by opening the drawer in the [o]ffice in which stamps were kept;

–        the representative posted the letter in the post box opposite his office on the way home from work.

22      The representative has acknowledged that there was a procedure for d[i]spatching letters that he did not follow. He admitted before the [examiner] that had he waited until the next day and allowed the secretary to type, print and post the letter, she would have made an entry in the outgoing mail log, which would at least have provided some evidence of the letter having been posted … By not following that procedure and omitting to make a note of posting the letter in the outgoing mail log, clearly the representative breached the firm’s procedures for the posting of mail.

23      In addition, the representative does not explain why he did not wait until the next day (Wednesday) for the secretary to type, print and post the letter, and make the corresponding entry in the outgoing mail log. The deadline did not expire until 12 February 2019 and any representative acting with due care would have waited until the next day to send the letter.

24      The representative’s conduct was not such that it precluded involuntary non-compliance with the time limit accorded of 12 February 2019 for replying to the notice of deficiency concerning the representation of the design application.

25      Although, it has been indicated that [it] is the task of the secretary to type, print and post the letter, and make the corresponding entry in the outgoing mail log, the representative has provided not a single argument about the precise system that was put in place by his firm to monitor time limits to ensure limits are respected.

26      As evidence that the [disputed] letter of 22 January 2019 was sent, the representative only provides a screen shot of the MS Word [software] metadata, which he alleges, shows that his letter was saved at 17:25 on 22 January 2019, which ties in with the call ending at 16:33. The metadata shows at most that a document was saved. It cannot prove that the letter was printed, and actually sent, as described above.

…

28      No adequate explanation has been furnished of why the representative would have hastily posted a letter himself without making the corresponding entry in the outgoing mail log, leaving no trace of the letter actually having been sent by his firm, almost three weeks before the expiry of the time limit that had been accorded. In doing so, ‘all due care required by the circumstances’ has not been demonstrated.

29      In those circumstances, [the examiner] did not err in taking the view that it was not appropriate to grant the request for restitutio in integrum, given that one of the conditions mentioned in Article 67(1) [of Regulation No 6/2002] had not been met, namely the condition requiring the party to have exercised all due care required by the circumstances.’

23      In that regard, the applicant criticises the statement in paragraph 26 of the contested decision, according to which the screenshot of the MS Word software metadata, provided in order to demonstrate that the disputed letter was printed and sent on 22 January 2019, establishes only that a version of that letter was saved on that day on the computer of the representative before EUIPO. He also criticises the Board of Appeal for not having taken into account the various items of evidence submitted in order to establish the recollections of the representative before EUIPO and thus prove that that letter had indeed been posted that evening. In addition, despite the existence, within the representative’s firm, of an internal system of control and monitoring of time limits which generally precluded involuntary non-compliance with them, the applicant submits that it was not unreasonable to omit all or part of the steps in that system. Restitutio in integrum should not therefore be excluded and to decide otherwise would be contrary to the principle of proportionality.

24      EUIPO disputes that line of argument.

25      As a preliminary point, it must be borne in mind that it is common ground that the deficiencies referred to in the deficiency notice were not remedied within the time limit set for the applicant by EUIPO. Under Article 10(4) of Regulation No 2245/2002, EUIPO was therefore entitled to reject the application for registration on that ground.

26      In order to substantiate his application for restitutio in integrum and thus establish that he had ‘taken all due care required by the circumstances’, the applicant put forward various arguments to show that his representative before EUIPO had indicated how he intended to remedy the deficiencies concerned by the disputed letter, posted by ordinary mail in the United Kingdom on 22 January 2019.

27      It must, however, be noted that, even if the various items of evidence submitted by the representative before EUIPO to establish his recollections and the screenshot of the MS Word software metadata produced to substantiate their veracity are sufficient to prove that he had indeed sent the disputed letter by ordinary mail on 22 January 2019, the fact remains that none of those items of evidence establishes that the applicant has acted with all due care in order for such a letter to be received by EUIPO within the time limit.

28      Such a conclusion is in no way altered by the answer to the question whether or not an ordinary mail item was recorded in the outgoing mail log as provided for in the procedures established within the firm of the representative before EUIPO concerning the posting of mail. Such registration would, at best, have only facilitated the demonstration that the disputed letter had actually been sent by that firm, without providing the slightest information as to the receipt of that letter by its addressee.

29      As has already been pointed out by the case-law, the characteristic feature of a letter sent by ordinary mail is that it is not accompanied by any information which makes it possible to establish with certainty both that it was sent and received (judgment of 25 October 2012, Automobili Lamborghini v OHIM – Miura Martínez (Miura), T‑191/11, not published, EU:T:2012:577, paragraph 32). Furthermore, as the examiner pointed out in the decision rejecting the application for restitutio in integrum, letters sent by ordinary mail cannot be tracked.

30      First, the applicant does not rely on any items of evidence capable of establishing not only the posting but also the receipt of the disputed letter, which he claims was sent by ordinary mail to EUIPO on 22 January 2019. Although the applicant submits items, taken from the recollections of its representative before EUIPO or from a screenshot of the MS Word software metadata, which shows that that letter was saved on the latter’s computer on that day at the beginning of the evening, those items do not concern the receipt, but only the drawing up of that letter or, even though insufficiently probative, its posting by ordinary mail.

31      Second, EUIPO states that all the documents which it receives are processed and reproduced in the corresponding files with a mark affixed with a stamp bearing the date of receipt. That was the case as regards the complete copy of the earlier application for a design sent by the representative before EUIPO by means of ordinary mail (see paragraph 3 above). EUIPO observes, in that regard, that there is no trace of such treatment as regards the disputed letter. The contested decision states accordingly that ‘[EUIPO] did not receive th[at] letter’ (see paragraph 7 of the contested decision).

32      In those circumstances, the uncertainty inherent in posting, by ordinary mail, which results from the representative before EUIPO’s choice of that method of communication, cannot be borne by the addressee of that letter, since the addressee of that letter makes various claims such as to cast reasonable doubt as to the receipt of the posting in question (see, to that effect, judgment of 25 October 2012, Miura, T‑191/11, not published, EU:T:2012:577, paragraphs 32 to 34).

33      In such a situation, as EUIPO states in its response, it was for the representative before EUIPO, as a professional who is requested to take all due care required by the circumstances, to satisfy himself that the disputed letter, which he claims was sent by ordinary mail on 22 January 2019, had been received within the time limit set.

34      Thus, the representative before EUIPO should have enquired about the receipt by EUIPO of the letter sent by ordinary mail, in order to remedy any failure of receipt if it transpired that that letter had not reached its addressee within the target period of 3 to 5 days to which he referred before the Board of Appeal, (see paragraph 9, 8th indent of the contested decision), before the expiry of the time limit set by EUIPO to follow up on the deficiency notice. As the Board of Appeal correctly pointed out in paragraph 25 of the contested decision, ‘the [applicant] has provided not a single argument about the precise system that was put in place by his firm to monitor time limits to ensure time limits are respected.’

35      Furthermore, the applicant cannot claim that that duty to exercise due care was complied with when his representative contacted EUIPO, first by telephone and then by electronic communication, on 28 February 2019. Such contact, which was accompanied by the sending of a copy of the disputed letter as an annex to that electronic communication, which took place more than 10 days after the expiry of the time limit set, could legitimately be regarded as being out of time.

36      As EUIPO points out, the representative could also have used the fax machine to send his response to the deficiency notice. To that end, he had a pre-registered fax number with EUIPO, as is indicated in the examiner’s decision rejecting the application for restitutio in integrum.

37      It follows from the foregoing that, in view of the uncertainty inherent in sending mail by ordinary mail, which results from the representative before EUIPO’s choice of that method of communication, the Board of Appeal was entitled to take the view that the representative had not taken all due care required by the circumstances in the present case and that, therefore, the first condition laid down in Article 67(1) of Regulation No 6/2002 was not satisfied.

38      It must be held that an effective system of internal supervision and monitoring of compliance with time limits, where posting of mail by ordinary mail is used as a method of communication, must include verification that such mail has been received by its addressee.

39      The requirement for such a precaution is not contrary to the principle of proportionality. Failure to comply with an obligation such as the observance of the time limits prescribed by EUIPO, which is fundamental to the proper functioning of the procedure for examining applications for registration of a Community design, may be penalised by forfeiture of a right, and that is not inconsistent with the principle of proportionality (see, by analogy, judgment of 17 September 2008, Neurim Pharmaceuticals (1991) v OHIM – Eurim-Pharm Arzneimittel (Neurim PHARMACEUTICALS), T‑218/06, EU:T:2008:379, paragraph 55 and the case-law cited).

 The differences between the present case and the case which gave rise to the Sun Park Holidays v Sunparks decision

40      At paragraph 27 of the contested decision, the Board of Appeal rejects as follows the relevance of a parallel between the present case and the case which gave rise to the Sun Park Holidays v Sunparks decision:

‘The [SunPark Holidays v Sunparks decision], concerning the failure to file a statement of grounds in due time, is not comparable. In that case, evidence was provided on the irregularities in the service of the German postal service post-box, which came to the representative’s attention because of complaints that letters, namely those put into that same post-box, had not arrived at their respective clients or courts. In this case, there are no indications of an extraneous event having occurred while the response letter was in the care of the [United Kingdom] and Spanish postal services. Moreover, in that case the statement of grounds arrived out of time, whereas in this case, [EUIPO] has never received the [disputed] letter the representative allegedly posted on 22 January 2019.’

41      That assessment is criticised by the applicant for the following reasons, which he claims establish unequal treatment. As regards the first difference noted by the Board of Appeal with the case which gave rise to the Sun Park Holidays v Sunparks decision, namely that the existence of irregularities in the functioning of the German postal service had been demonstrated in that case, although there is nothing here to indicate that an event extraneous to the representative before EUIPO occurred in the context of the handling of the disputed letter by the United Kingdom and Spanish postal services, the applicant submits that the fact that the disputed letter was not produced is proof of such an extraneous event. The Board of Appeal should have found that the evidence provided by the representative before EUIPO was of the same degree of seriousness as the sworn statement made by the representative’s employee in the case which gave rise to the Sun Park Holidays v Sunparks decision.

42      The applicant also regards as incorrect the second difference noted by the Board of Appeal between the present case, in which the document at issue never arrived, and the case which gave rise to the Sun Park Holidays v Sunparks decision, where it arrived late, in so far as it was not the original of the disputed document which arrived late in the case which gave rise to the Sun Park Holidays v Sunparks decision, but a copy lodged subsequently. In the present case, a copy was also sent to EUIPO, as an annex to the communication of the representative before EUIPO of 28 February 2019. The representative before EUIPO was therefore more diligent in the present case than the representative who intervened in the case which gave rise to the Sun Park Holidays v Sunparks decision, since he did not wait to be informed by EUIPO that no document had been received in time to send a copy. Moreover, unlike the case which gave rise to the Sun Park Holidays v Sunparks decision, where the Board of Appeal had accepted indirect evidence intended to show that the document at issue had been drawn up before the expiry of the prescribed period, the Board of Appeal found that there was doubt as to the veracity of the recollections of the representative before EUIPO as regards the drafting of the disputed letter, despite the evidence consisting of the metadata relating to that letter.

43      The applicant also maintains that the Board of Appeal failed to take account of the consideration set out in the Sun Park Holidays v Sunparks decision regarding the requirement that the party concerned show ‘all due care required by the circumstances’, according to which ‘the sole question is whether the representatives could or should have reckoned with the possibility that the respective post-box was not emptied, or its content not delivered, correctly’. According to the applicant, in the present case, the Board of Appeal should have answered the similar question in the negative, in the same way as it answered the question referred to above in the case which gave rise to the Sun Park Holidays v Sunparks decision, which has been, and continues to be, the guideline case under EUIPO examination guidelines.

44      As a preliminary point, it must be recalled that, according to the settled case-law of the Court, EUIPO is under a duty to exercise its powers in accordance with the general principles of EU law, including the principle of equal treatment and the principle of good administration (see judgment of 28 June 2018, EUIPO v Puma, C‑564/16 P, EU:C:2018:509, paragraph 60 and the case-law cited). Thus, the Court has stated that, EUIPO, having regard in particular to the principle of equal treatment, must take into account the decisions previously taken in respect of similar applications and consider with especial care whether it should decide in the same way or not, since the way in which those two principles are applied must be consistent with respect for the principle of legality, which means that the examination of any application for restitutio in integrum must be stringent and full, and must be undertaken in each individual case (see, by analogy, judgment of 28 June 2018, EUIPO v Puma, C‑564/16 P, EU:C:2018:509, paragraph 61 and the case-law cited).

45      As is apparent from the contested decision, the Board of Appeal was right to point out differences between the present case and the case which gave rise to the Sun Park Holidays v Sunparks decision.

46      Unlike in the present case, there was, in the case which gave rise to the Sun Park Holidays v Sunparks decision, evidence which enabled the existence of irregularities to be established in the operation of the post box of the postal service which had been used. That evidence, referred to in paragraphs 7, 15 and 16 of the Sun Park Holidays v Sunparks decision, made it possible, inter alia, to establish that those irregularities, which also concerned other items from that post box, had been reported to the postal service even before EUIPO stated that it had not received the document at issue. By contrast, in the present case, none of the information communicated by the applicant concerns the functioning of the postal service in the strict sense.

47      Such a conclusion would not be called into question even if, as the applicant claims, the Board of Appeal should have found that certain items of evidence provided by its representative before EUIPO could have been treated in the same way as the sworn statement made by the employee of the representatives in the case which gave rise to the Sun Park Holidays v Sunparks decision.

48      The applicant has therefore not demonstrated the lack of vigilance on the part of his representative because of an event outside of the latter’s control, in so far as what he is criticised of, in the present case, is of failing to have ensured that the addressee had properly received, within the time limit set, a letter which he had decided to send by ordinary mail.

49      The difference referred to in paragraph 46 above is in any event sufficient to reject the argument alleging infringement of the principle of equal treatment. It is therefore not necessary to examine the other differences between the case which gave rise to the Sun Park Holidays v Sunparks decision and the present case referred to by the Board of Appeal in the contested decision.

50      The Board of Appeal was therefore correct to conclude, in paragraph 27 of the contested decision, that the circumstances of the case which gave rise to the Sun Park Holidays v Sunparks decision were not comparable to those of the present case and that it was therefore entitled to reach different conclusions in each of them.

51      Lastly, in response to the applicant’s reliance on the Guidelines for Examination of EUIPO, according to which ‘failure to deliver by the postal or delivery service does not involve any lack of due care by the party concerned (… Sun Park Holidays v Sunparks)’ (see Part A, section 8, 2.1.a), it should be borne in mind that that principle may be derogated from, in particular where, as in the present case, in the case of a letter sent by ordinary mail, the internal control and monitoring system could have been expected to ensure that that system not only certified the posting, which in practice was not the case here, but also provided that the person concerned should have ensured that the letter was received within the prescribed time limit (see paragraphs 29 to 32 above).

52      The guidelines for examination before EUIPO are therefore not such as to call into question the foregoing conclusion.

53      Consequently, the Board of Appeal was fully entitled, on the basis of the single conclusion made in paragraph 37 above, and therefore without ruling on the second condition referred to in paragraph 17 above, to dismiss the action against the decision rejecting the application for restitutio in integrum submitted to it.

54      It follows from all the foregoing that the first head of claim must be rejected, as must, consequently, the second and third heads of claim, without there being any need to rule on their admissibility.

 Costs

55      Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, he must be ordered to pay EUIPO’s costs, in accordance with the form of order sought by EUIPO.

On those grounds,

THE GENERAL COURT (Sixth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Mr Jeffrey Scott Crevier to pay the costs.

Delivered in open court in Luxembourg on 20 January 2021.

*      Language of the case: English.

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