In Case T‑323/21

ORDER OF THE GENERAL COURT (Sixth Chamber)

10January 2022(*)

(EU trade mark– Revocation proceedings– Article173(1) of the Rules of Procedure– Intervention by the other party to the proceedings before the Board of Appeal– Article179 of the Rules of Procedure– Articles58 and 60 of the Rules of Procedure– Calculation of time limits and extension on account of distance– Response lodged out of time– No excusable error– Dismissal)

In Case T‑323/21,

Castel Frères, established in Blanquefort (France), represented by T.de Haan, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by J.F.Crespo Carrillo, acting as Agent,

defendant,

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

Shanghai Panati Co., established in Shanghai (China),

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 22March 2021 (Case R753/2020‑5), relating to revocation proceedings between Shanghai Panati and Castel Frères,

THE GENERAL COURT (Sixth Chamber),

composed of A.Marcoulli, President, S.Frimodt Nielsen and J.Schwarcz (Rapporteur), Judges,

Registrar: E.Coulon,

makes the following

Order

Background and procedure

1On 8January 2009, the applicant, Castel Frères, obtained from the European Union Intellectual Property Office (EUIPO), on the basis of Council Regulation (EC) No207/2009 of 26February 2009 on the European Union trade mark (OJ 2009 L78, p.1), as amended (replaced by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14June 2017 on the European Union trade mark (OJ 2017 L154, p.1)), registration, under the number 6785109, of the following EU figurative trade mark:

2On 29May 2018, the other party to the proceedings before EUIPO, Shanghai Panati Co., filed an application for revocation of the contested mark on the basis of Article58(1)(a) of Regulation 2017/1001 on the ground that that mark had not been put to genuine use within a continuous period of five years.

3By decision of 3April 2020, the Cancellation Division rejected the application for revocation.

4On 24April 2020, Shanghai Panati Co. filed a notice of appeal with EUIPO pursuant to Articles66 to 71 of Regulation 2017/1001 seeking annulment of the Cancellation Division’s decision.

5By decision of 22March 2021, the Fifth Board of Appeal of EUIPO upheld the appeal and revoked the contested mark.

6By application lodged at the Court Registry on 8June 2021, the applicant brought an action for annulment of the decision of the Board of Appeal.

7In accordance with Article178(3) of the Rules of Procedure of the General Court, the application was served on Shanghai Panati Co. by letter from the Registrar of the Court of 28June 2021, of which it acknowledged receipt on 12July 2021.

8On 23September 2021, Shanghai Panati Co. lodged a response at the Court Registry.

9On 24September 2021, the Registry of the Court found that Shanghai Panati Co. had not responded to the application within the prescribed time limit.

10By a measure of organisation of procedure of 27October 2021, the Court requested Shanghai Panati Co. to submit its observations on the reasons for the late submission of its response.

11On 11November 2021, in essence, Shanghai Panati Co. replied to the Court that its response had not been lodged out of time and had been lodged in compliance with the relevant provisions of the Rules of Procedure relating to procedural time limits.

Law

12In accordance with Article173(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 General Court by responding to the application in the manner and within the time limit prescribed.

13As is recognised in the second paragraph of Article53 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 Court. The specific provisions of TitleIV of the Rules of Procedure concerning proceedings relating to intellectual-property rights have been adopted in order to take account of those specific features. To that end, inter alia, specific rules on interveners were adopted (see order of 7December 2016, Claranet Europe v EUIPO– Claro (claranet), T‑129/16, not published, EU:T:2016:728, paragraph8 and the case-law cited).

14In 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 Articles19 and 144 of the Rules of Procedure must be applied by analogy (orders of 18March 2016, Sociedad agraria de transformación n°9982 Montecitrus v OHIM– Spanish Oranges (MOUNTAIN CITRUS SPAIN), T‑495/15, not published, EU:T:2016:179, paragraph9, and of 19June 2019, Glimarpol v EUIPO– Metar (Pneumatic power tools), T‑748/18, not published, EU:T:2019:464, paragraph9).

15Under Article19 of the Rules of Procedure, read in conjunction with Article144(5) and (6) thereof, the President is to decide on the application to intervene by order or must refer the decision to the Court. The order must be reasoned if the application is dismissed.

16The President of the Sixth Chamber of the Court referred to the Chamber the question of whether, in the circumstances of the present case, Shanghai Panati Co. may be granted leave to participate in the proceedings before the Court as intervener under Article173(1) of the Rules of Procedure.

17It should be noted that, in its reply to the measure of organisation of procedure, Shanghai Panati Co. submits that the existence of unforeseeable circumstances or, in any event, the application of Article58 of the Rules of Procedure should lead the Court to find that its response to the application was lodged within the prescribed time limit.

18It is appropriate, first of all, to consider the second argument.

19The Court notes that, in accordance with Article179 of the Rules of Procedure, the parties to the proceedings other than the applicant are to lodge their responses to the application within two months of service thereof.

20In that regard, Article58(1)(b) of the Rules of Procedure provides that a time limit expressed in weeks, months or years is to end with the expiry of whichever day in the last week, month or year is the same day of the week, or falls on the same date, as the day during which the event or action from which the time limit is to be calculated occurred or took place.

21Article58(2) specifies that if that time limit would otherwise end on a Saturday, Sunday or an official holiday, it is to be extended until the end of the next working day.

22By application of Article60 of those rules, the procedural time limits are to be extended on account of distance by a single period of 10days.

23Consequently, it must be concluded that it follows from Article179 of the Rules of Procedure, read in conjunction with Article60 of those rules, that the time limit within which the response had to be lodged, failing which it would be inadmissible, was 2months and 10days from the service of the application.

24In the present case, it is common ground that Shanghai Panati Co. acknowledged receipt of the application on 12July 2021, so that the time limit of two months laid down in Article179 of the Rules of Procedure for lodging the response ended, under Article58(1)(b) of those rules, on the expiry of the day which, in the last month in which the time limit was calculated, bore the same number as the day on which the application was served, namely 12September 2021, extended on account of distance by a single period of 10days.

25In those circumstances, contrary to what Shanghai Panati Co. claims on the basis of an incorrect application of Article58(1)(a) of the Rules of Procedure, Shanghai Panati Co. had until 22September 2021, that day being neither a Saturday, Sunday nor a public holiday, to submit its response, and not 23September 2021.

26As is apparent from paragraph8 above, Shanghai Panati Co. lodged its response on 23September 2021, that is to say, outside the prescribed time limit. Therefore, Shanghai Panati Co. cannot reasonably maintain that the lodging of the response complies with the prescribed time limit.

27As regards the argument of Shanghai Panati Co. that the existence of unforeseeable circumstances should lead the Court to find that its response to the application was lodged within the prescribed time limit, it must be held that, by that argument, in essence, it is seeking to apply the second paragraph of Article45 of the Statute of the Court of Justice of the European Union.

28The second paragraph of Article45 of the Statute of the Court of Justice of the European Union provides that 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.

29In that regard, it must be noted that, in accordance with the case-law, the concept of force majeure must be understood in the sense of unusual and unforeseeable circumstances beyond the trader’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 (see order of 4May 2016, Monster Energy v EUIPO, C‑602/15P, not published, EU:C:2016:331, paragraph35 and the case-law cited). In particular, the trader must pay close attention to the course of the procedure set in motion and, in particular, demonstrate diligence in order to comply with the prescribed time limits. Those concepts do 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 time limit prescribed for instituting proceedings (see order of 11June 2020, GMPO v Commission, C‑575/19P, not published, EU:C:2020:448, paragraph34 and the case-law cited).

30Furthermore, it is clear from the Court’s case-law that, under EU rules on time limits for bringing proceedings, the concept of excusable error must be strictly construed and relates only to exceptional circumstances in which, in particular, the conduct of the institution concerned has been, either in itself or to a significant extent, such as to give rise to understandable confusion on the part of a party acting in good faith and exercising all the diligence required of a normally experienced trader (see order of 11June 2020, GMPO v Commission, C‑575/19P, not published, EU:C:2020:448, paragraph36 and the case-law cited).

31In the present case, Shanghai Panati Co. relies on human error detected in the internal handling of the letter stamped with an entry date indicating 13July 2021 instead of 12July 2021 within the group responsible for trade marks and patents. It maintains that such an error had never occurred to date. Lastly, Shanghai Panati Co. adds that if it had known that the time limit expired on 22September 2021, as the Court considers, it would have requested an exceptional extension of the time limit allowed by the Rules of Procedure on the ground, in essence, that the lawyer in charge of the case had a five-hour hearing that day in Madrid.

32In that regard, it is sufficient, however, to note that a party may not rely either on the inadequate functioning of its internal organisation or on a failure to apply its internal instructions in support of its claim that the error which it or its employees committed was excusable, or that there were unforeseeable circumstances or force majeure (see, to that effect, order of 28April 2008, PubliCare Marketing Communications v OHIM (Publicare), T‑358/07, not published, EU:T:2008:130, paragraph17 and the case-law cited).

33It follows from the foregoing that, in accordance with Article173(1) of the Rules of Procedure, since Shanghai Panati Co. did not lodge its response to the application within the prescribed time limit, or establish the existence of unforeseeable circumstances or force majeure, it may not participate in the proceedings before the Court and that the response which it lodged out of time is inadmissible.

On those grounds,

THE GENERAL COURT (Sixth Chamber),

hereby orders:

1.Shanghai Panati Co. is not granted leave to participate, as intervener, in the proceedings in Case T‑323/21 pursuant to Article173(1) of the Rules of Procedure of the General Court.

2.Shanghai Panati Co. shall bear its own costs.

Luxembourg, 10January 2022.

*Language of the case: English.