Judgments nº T-276/20 of Tribunal General de la Unión Europea, January 20, 2021

• Resolution Date: January 20, 2021
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-276/20

(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 observation s 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...