Judgments nº T-232/00 of Court of First Instance of the European Communities, June 13, 2002

• Resolution Date: June 13, 2002
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-232/00

JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

13 June 2002 (1) (Community trade mark - Opposition proceedings - Failure to produce evidence in the language of the opposition proceedings - Rule 18(2) of Regulation (EC) No 2868/95) In Case T-232/00,

Chef Revival USA Inc., established in Lodi, New Jersey (United States), represented by N. Jenkins, Solicitor, with an address for service in Luxembourg,

applicant,

v

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

defendant,

the other party to the proceedings before the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) being

Joachín Massagué Marín, of Sabadell (Spain),

ACTION brought against the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 June 2000 (Case R 181/1999-3), as corrected by corrigendum of 6 July 2000,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Fourth Chamber),

composed of: M. Vilaras, President, V. Tiili and P. Mengozzi, Judges,

Registrar: J. Palacio González, Administrator,

having regard to the application lodged at the Registry of the Court of First Instance on 4 September 2000,

having regard to the response of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) lodged at the Registry of the Court of First Instance on 2 February 2001,

further to the hearing on 10 January 2002,

gives the following

Judgment

Legal background

1.

Article 42(1) and (3) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended, provides as follows:

‘1. Within a period of three months following the publication of a Community trade mark application, notice of opposition to registration of the trade mark may be given on the grounds that it may not be registered under Article 8 ...

3. Opposition must be expressed in writing and must specify the grounds on which it is made. It shall not be treated as duly entered until the opposition fee has been paid. Within a period fixed by the Office, the opponent may submit in support of his case facts, evidence and arguments.’

   2.
   Articles 73 and 74 of Regulation No 40/94 provide as follows:
   ‘Article 73
   Statement of reasons on which decisions are based

   Decisions of the Office shall state the reasons on which they are based. They shall be based only on reasons or evidence on which the parties concerned have had an opportunity to present their comments.

   Article 74
   Examination of the facts by the Office of its own motion

1. In proceedings before it the Office shall examine the facts of its own motion; however, in proceedings relating to relative grounds for refusal of registration, the Office shall be restricted in this examination to the facts, evidence and arguments provided by the parties and the relief sought.

2. The Office may disregard facts or evidence which are not submitted in due time by the parties concerned.’

   3.
   Rules 15 to 18, 20, 71 and 96 of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation No 40/94 (OJ 1995 L 303, p. 1) (hereinafter ‘the implementing regulation’) state as follows:
   ‘Rule 15
   Contents of the notice of opposition

   (1) ...

   (2) The notice of opposition shall contain:

   (a) as concerns the application against which opposition is entered ...

   (b) as concerns the earlier mark or the earlier right on which the opposition is based ...

   (c) as concerns the opposing party...

   (d) a specification of the grounds on which the opposition is based.

   ...

   Rule 16

   Facts, evidence and arguments presented in support of the opposition

   (1) Every notice of opposition may contain particulars of the facts, evidence and arguments presented in support of the opposition, accompanied by the relevant supporting documents.

   (2) If the opposition is based on an earlier mark which is not a Community trade mark, the notice of opposition shall preferably be accompanied by evidence of the registration or filing of that earlier mark, such as a certificate of registration. ...

   (3) The particulars of the facts, evidence and arguments and other supporting documents as referred to in paragraph 1, and the evidence referred to in paragraph 2 may, if they are not submitted together with the notice of opposition or subsequent thereto, be submitted within such period after commencement of the opposition proceedings as the Office may specify pursuant to Rule 20 (2).

   Rule 17
   Use of languages in opposition proceedings

   (1) Where the notice of opposition is not filed in the language of the application for registration of the Community trade mark, if that language is one of the languages of the Office, or in the second language indicated when the application was filed, the opposing party shall file a translation of the notice of opposition in one of those languages within a period of one month from the expiry of the opposition period.

   (2) Where the evidence in support of the opposition as provided for in Rule 16 (1) and (2) is not filed in the language of the opposition proceedings, the opposing party shall file a translation of that evidence into that language within a period of one month from the expiry of the opposition period or, where applicable, within the period specified by the Office pursuant to Rule 16 (3).

   ...

   Rule 18
   Rejection of notice of opposition as inadmissible

   (1) If the Office finds that the notice of opposition does not comply with the provisions of Article 42 of Regulation [No 40/94], or where the notice of opposition does not clearly identify the application against which opposition is entered or the earlier mark or the earlier right on the basis of which the opposition is being entered, the Office shall reject the notice of opposition as inadmissible unless those deficiencies have been remedied before expiry of the opposition period. If the opposition fee has not been paid within the opposition period, the notice of opposition shall be deemed not to have been entered. If the opposition fee has been paid after the expiry of the opposition period, it shall be refunded to the opposing party.

   (2) If the Office finds that the notice of opposition does not comply with other provisions of Regulation [No 40/94] or of these Rules, it shall inform the opposing party accordingly and shall call upon him to remedy the deficiencies noted within a period of two months. If the deficiencies are not remedied before the time limit expires, the Office shall reject the notice of opposition as inadmissible.

   ...

   Rule 20
   Examination of opposition

   (1) ...

   (2) Where the notice of opposition does not contain particulars of the facts, evidence and arguments as referred to in Rule 16 (1) and (2), the Office shall call upon the opposing party to submit such particulars within a period specified by the Office. Any submission by the opposing party shall be communicated to the applicant who shall be given an opportunity to reply within a period specified by the Office.

   (3) If the applicant files no observations, the Office may give a ruling on the opposition on the basis of the evidence before it.

   ...

   Rule 71
   Duration of time limits

   (1) Where [Regulation No 40/94] or these Rules provide for a period to be specified by the Office, such period shall ... be not less than one month ... . The Office may, when this is appropriate under the circumstances, grant an extension of a period specified if such extension is requested by the party concerned and the request is submitted before the original period expired.

   ...

   Rule 96
   Written proceedings

   (1) ...

   (2) Unless otherwise provided for in these Rules, documents to be used in proceedings before the Office may be filed in any official language of the Community. Where the language of such documents is not the language of the proceedings the Office may require that a translation be supplied, within a period specified by it, in that language or, at the choice of the party to the proceeding, in any language of the Office.’

   Background to the dispute

   4.
   On 1 April 1996, the applicant filed an application for a Community trade mark at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (hereinafter ‘the Office’).
   5.
   The trade mark applied for is a figurative trade mark consisting of the word ‘Chef’ and various graphic elements.
   6.
   The goods in respect of which registration of the trade mark was sought come within Classes 8, 21 and 25 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and are described, for each of those classes, as follows:

   - Class 8: ‘Cutlery; kitchen knives’;

   - Class 21: ‘Household utensils and containers’;

   - Class 25: ‘Clothing, boots, shoes and slippers; clothing for use by persons involved in the preparation, distribution and serving of food and beverages; coats, jackets, tunics, trousers, shorts, culottes, shirts, T-shirts, vests, smocks, aprons, neckties, bow ties, neckerchiefs, hats, caps, cummerbunds, belts, clogs and shoes, all for use by persons involved in the preparation, distribution and serving of food and beverages’.

   7.
   The application was submitted in English. French was designated as the second language in accordance with Article 115(3) of Regulation No 40/94.

   ...