Case T‑305/19

Welmax + sp. z o.o. sp.k.

v

European Union Intellectual Property Office

Judgment of the General Court (Ninth Chamber), 8 July 2020

(EU trade mark — Opposition proceedings — International registration designating the European Union — Word mark welmax — Earlier EU word mark valmex — Time limits for an appeal before the Board of Appeal — Delay — Point from which time starts to run — Notification — Proof of dispatch by registered post — Communication by email — Failure to comply with the obligation to pay the appeal fee within the time limit — Appeal deemed not to have been filed — Scope of the requests for regularisation — Article 68(1) of Regulation (EU) 2017/1001 — Articles 23 and 56 to 58 of Delegated Regulation (EU) 2018/625)

EU trade mark — Appeals procedure — Form of appeal and period within which it must be brought — Payment of the appeal fee outside the time limit — Appeal deemed not to have been filed — Request for regularisation made after the expiry of the time limit — Scope

European Parliament and Council Regulation 2017/1001, Arts. 68(1), 104 and 105; Commission Regulation 2018/625, Art. 23(1)(c) and (3)

(see paragraphs 65, 71-77)

Résumé

By its judgment of 8 July 2020, Welmax + v EUIPO — Valmex Medical Imaging (welmax) (T‑305/19), the Court dismissed the action brought against the decision of the Board of Appeal of the European Union Intellectual Property Office (EUIPO), by which the latter dismissed the appeal brought by Welmax + (‘the applicant’), which was deemed not to have been filed, on the ground that the appeal fee had not been paid within the prescribed time limit.

In the present case, by decision of 4 July 2018, the Opposition Division of EUIPO refused to grant the protection of the international registration in the European Union for the applicant’s word mark welmax in respect of certain goods. Following an email from the applicant, of 20 September 2018, informing EUIPO that it had still not received the Opposition Division’s decision, EUIPO sent that decision to the applicant by email of 21 September 2018. By letter, received by EUIPO on 26 October 2018, the applicant filed an appeal against that decision. However, the appeal fee was not received by EUIPO until 24 December 2018. The Board of Appeal of EUIPO therefore dismissed the appeal, deeming it not to have been filed, on the ground that the appeal fee had been received out of time.

First of all, the Court recalled that payment of the appeal fee is required in order for the appeal to be regarded as having been filed, so that the payment must be made within a period of two months following the date of notification of the decision under appeal. It then observed that, in the present case, the two-month time limit for the payment of the appeal fee, which started to run from the notification by email of 21 September 2018, expired on 21 November 2018. It thus concluded that the appeal fee, received on 24 December 2018, had been paid out of time.

In that connection, the Court noted that the opportunities to regularise an application, in order to avoid the inadmissibility of the appeal, referred to in Article 23(1)(c) of Delegated Regulation 2018/625, ( 1 ) do not include the non-payment of the appeal fee. In accordance with Article 23(3) of that regulation, where the appeal fee has been paid after the expiry of the time limit, the appeal is deemed not to have been filed, without there being any possibility to regularise it other than by restitutio in integrum, subject to the specific provisions of Article 104 of Regulation 2017/1001. ( 2 ) The applicant had not brought application for restitutio in integrum.

The Court also stated that only unforeseeable circumstances, force majeure or an excusable error, which the applicant had not alleged, could justify the non-payment of the appeal fee within the time limit laid down. Furthermore, the Court stated that it was not EUIPO’s responsibility to remind the applicant to pay the appeal fee within the prescribed time limit.

Therefore, the Court held that the Board of Appeal had rightly deemed the applicant’s appeal not to have been filed on the ground that the appeal fee, received on 24 December 2018, had been paid out of time.

( 1 ) Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation (EU) 2017/1001 of the European Parliament and of the Council on the European Union trade mark, and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104, p. 1).

( 2 ) 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).