Action brought on 26 April 2004 by Erich Drazdansky against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-158/04)

(2004/C 217/36)

Language of the case to be determined pursuant to Article 131(2) of the Rules of Procedure — language in which the application was submitted: German

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 26 April 2004 by Erich Drazdansky, resident in Wiener Neustadt (Austria), represented by A. Leeb, lawyer.

The Concentrate Manufacturing Company of Ireland, also trading as Seven-Up International, Hamilton (Bermuda), was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

Pleas in law and main arguments:

The applicant lodged an application with the defendant Office for the word mark 'UUP'S' for goods in Class 32 (Application No 1 968 676). Opposition to that mark was lodged by The Concentrate Manufacturing Company of Ireland, holder of the Community trade mark and Spanish word mark ‘UP’ for goods in Classes 30 and 32.

By decision of 31 July 2003, notified on 1 August 2003 by fax, the Opposition Division upheld the opposition. By letter of 1 October 2003, received by the Office on 7 October 2003, the applicant appealed against that decision. By letter of 23 October 2003 the clerks' office of the Board of Appeal informed the applicant that the appeal had not been lodged within the time limit and requested the applicant to submit his observations on that point. The applicant subsequently lodged an application for restitutio in integrum.

By a decision of 3 March 2004 the Second Board of Appeal of the Office rejected that application and the applicant's appeal.

The applicant submits that the appeal was signed by the applicant's representative on the last day before expiry of the time limit and placed on the pile of post to be sent out by fax. However, by error, after payment of the appeal fee, the employee responsible for the post did not replace the item with the others to be sent by fax but with those to be sent by recorded mail.

The applicant claims that, in reaching the contested decision, the Office failed to apply correctly the rules in Regulation No 40/94 governing restitutio in integrum. Had they been correctly applied, the Office would have been obliged to conclude that the requirements for restitutio in integrum were fulfilled in the present case, since there was no organisational fault which would prevent restitution in integrum and the rules on late payment of fees in the fees regulations would have been applicable by analogy.

The applicant submits that objectively this is a case of a minor oversight that could not be prevented by reasonable commercial methods of organisation. It should also be borne in mind that the other party in the appeal proceedings suffered no procedural disadvantage.