Orders nº T-713/18 of Tribunal General de la Unión Europea, October 09, 2019

• Resolution Date: October 09, 2019
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-713/18

(EU trade mark - Opposition proceedings - Application for EU word mark ESIM Chemicals - Earlier national word mark ESKIM - Relative ground for refusal - Failure to comply with the obligation to pay the appeal fee within the period prescribed - Decision of the Board of Appeal declaring that the appeal is deemed not to have been filed - Action manifestly lacking any foundation in law)

In Case T-713/18,

Esim Chemicals GmbH, established in Linz (Austria), represented by I. Rungg and I. Innerhofer, lawyers,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by H. O’Neill, acting as Agent,

defendant,

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

Sigma-Tau Industrie Farmaceutiche Riunite SpA, established in Rome (Italy),

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 2 October 2018 (Case R 1267/2018-5) relating to opposition proceedings between Sigma-Tau Industrie Farmaceutiche Riunite and Esim Chemicals,

THE GENERAL COURT (Fourth Chamber),

composed, at the time of the deliberation, of H. Kanninen, President, C. Iliopoulos and I. Reine (Rapporteur), Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Court Registry on 3 December 2018,

having regard to the response lodged at the Court Registry on 28 March 2019,

makes the following

Order

Background to the dispute

1 On 14 August 2015, the applicant, Esim Chemicals GmbH, filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1)).

2 The trade mark in respect of which registration was sought is the word mark ESIM Chemicals.

3 The goods and services in respect of which registration was sought are in Classes 1, 5, 31 and 42 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.

4 The trade mark application was published in European Union Trade Marks Bulletin No 2015/182 of 25 September 2015.

5 On 28 December 2015, Sigma-Tau Industrie Farmaceutiche Riunite SpA filed a notice of opposition, under Article 41 of Regulation No 207/2009 (now Article 46 of Regulation 2017/1001), to registration of the trade mark applied for in respect of some of the abovementioned goods and services, namely those in Classes 1 and 5.

6 The opposition was based on the earlier Italian word mark ESKIM designating goods in Class 5.

7 On 3 May 2018, the Opposition Division upheld the opposition in part on account of a likelihood of confusion with the earlier trade mark in respect of the goods in Class 5.

8 On 2 July 2018, the applicant filed a notice of appeal before EUIPO against the Opposition Division’s decision.

9 By notification of 6 July 2018, EUIPO informed the applicant that its notice of appeal had been received and assigned to the Fifth Board of Appeal. That notification indicated that it replaced a notification dated 2 July 2018.

10 On 20 July 2018, the Registry of the Boards of Appeal informed the applicant that the appeal fee of EUR 720 had been received by EUIPO only on 13 July 2018, namely after the expiry, on 9 July 2018, of the two-month appeal period during which that fee should have been paid. Nevertheless, the Registry informed the applicant that that period for payment of the fee would be considered to have been observed if, until 20 August 2018, the applicant were to provide evidence that it had paid the fee or had given an order to a banking establishment to transfer the amount of the payment of the fee before the expiry of that period for payment. Moreover, the Registry informed the applicant that if the payment had been made within the last 10 days of the appeal...