Keywords
Summary

Keywords

1. Community trade mark - Appeals procedure - Appeals before the Community judicature - Actions for annulment - Plea of illegality - Collateral nature - Whether permissible

(Art. 241 EC; Council Regulation No 40/94, Art. 63(2))

2. European Community - Language regime - Regulation No 1

(EC Treaty, Art. 217 (now Art. 290 EC); Council Regulation No 1)

3. Community trade mark - Languages of the Office - Obligation on the applicant for registration of a Community trade mark to indicate a second language as a possible language of procedure in opposition, revocation and invalidity proceedings - Infringement of the principle of non-discrimination - None

(Council Regulation No 40/94, Art. 115(3); Commission Regulation No 2868/95, Art. 1, Rule 1(1)(j))

Summary

1. The fact that Regulation No 40/94 on the Community trade mark does not expressly mention the plea of illegality as a collateral legal remedy which persons bringing actions may use before the Court of First Instance when seeking the annulment or alteration of a decision of a Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) does not mean that they cannot raise such a plea in those actions. That right follows from the general principle laid down by Article 241 EC.

( see para. 21 )

2. Council Regulation No 1 determining the languages to be used by the European Economic Community is merely an act of secondary law, whose legal base is Article 217 of the Treaty (now Article 290 EC). To claim that that regulation sets out a specific Community law principle of equality between languages, which may not be derogated from even by a subsequent regulation of the Council, is tantamount to disregarding its character as secondary law. Further, the Member States did not lay down rules governing languages in the Treaty for the institutions and bodies of the Community; rather, Article 217 of the Treaty enables the Council, acting unanimously, to define and amend the rules governing the languages of the institutions and to establish different language rules. That Article does not provide that once the Council has established such rules they cannot subsequently be altered. It follows that the rules governing languages laid down by Regulation No 1 cannot be deemed to amount to a principle of Community law.

( see para. 58 )

3. The obligation on an applicant for registration of a Community trade mark under Article 115(3) of Regulation No 40/94 on the Community trade mark and Rule 1(1)(j) of Article 1 of Regulation No 2868/95 implementing Regulation No 40/94 to indicate a second language which shall be a language of the Office the use of which he accepts as a possible language of proceedings for opposition, revocation or invalidity proceedings, does not involve an infringement of the principle of non-discrimination.

As is apparent from the actual wording of Article 115(3) of Regulation No 40/94, by indicating a second language, the applicant accepts use of that language as a language of proceedings only in relation to opposition, revocation or invalidity proceedings. It follows that, so long as the applicant is the sole party to proceedings before the Office, the language used for filing the application for registration remains the language of proceedings. Consequently, in such proceedings, Regulation No 40/94 cannot be taken, in itself, as implying differentiated treatment as regards language, given that it in fact guarantees use of the language of the application filed as the language of proceedings and thus the language in which procedural documents of a decisional character must be drafted.

In pursuing the objective of determining the language of the proceedings where parties who do not share the same language preference fail to agree, the Council must be considered to have made an appropriate and proportionate choice, even if the official languages of the Community were treated differently. First of all, Article 115(3) of Regulation No 40/94 accords the applicant for registration of a trade mark an opportunity to fix, from among the most widely known languages in the European Community, the language that is to be used for opposition, revocation or invalidity proceedings in the event that the first language chosen by the applicant is not that requested by another party to the proceedings. Secondly, by limiting that choice to the languages which are the most widely known in the European Community, and thus avoiding the possibility of the language of proceedings being particularly remote in relation to the linguistic knowledge of the other party to the proceedings, the Council remained within the limits of what is necessary for achieving the aim in view.

( see paras 60-61, 63 )