Daico International v EUIPO (EU trade mark - Revocation proceedings - Order) [2019] EUECJ C-36/19P

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(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — EU trade mark — Revocation proceedings — Word mark RoB — Declaration of revocation — Regulation (EC) No 2868/95 — Rule 62(3) — Due notification — Appeal manifestly unfounded)

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 21 January 2019,

Daico International BV, established in Amsterdam (Netherlands), represented by M.F.J. Haak, advocaat,

composed of T. von Danwitz, President of the Chamber, P.G. Xuereb and A. Kumin (Rapporteur), Judges,

having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,

1 By its appeal, Daico International BV seeks to have set aside the order of the General Court of the European Union of 22 November 2018, Daico International v EUIPO — American Franchise Marketing (RoB) (T‑356/17, not published, EU:T:2018:845) (‘the order under appeal’), by which it dismissed its action brought against the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 21 March 2017 (Case R 1407/2016-2), relating to revocation proceedings between American Franchise Marketing Ltd and Daico International.

2 In support of its appeal, the appellant puts forward a single ground of appeal, alleging infringement of Rule 62(3) of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).

3 Under Article 181 of its Rules of Procedure, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.

‘1. For the reasons set out below, I propose that the Court should, in accordance with Article 181 of the Rules of Procedure, dismiss the appeal in the present case as being manifestly unfounded and order the appellant to pay the costs, in accordance with Article 137 and Article 184(1) of the Rules of Procedure

2. In support of its appeal, the appellant puts forward a single ground of appeal, alleging infringement of Rule 62(3) of Regulation No 2868/95, now Article 58(3) of 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).

3. According to Rule 62(3) of Regulation No 2868/95, “where notification is effected by registered letter, whether or not with advice of delivery, this shall be deemed to be delivered to the addressee on the 10th day following that of its posting, unless the letter has failed to reach the addressee or has reached him at a later date. In the event of any dispute, it shall be for the Office to establish that the letter has reached its destination or to establish the date on which it was delivered to the addressee, as the case may be.”

4. In particular, the appellant submits that the General Court erroneously ruled that the registered letter sent to it by EUIPO, and by which the latter invited the appellant to submit evidence of genuine use, had been duly notified to it.

5. The appellant contends that the General Court misapplied the concept of “due notification” within the meaning of Rule 62(3) of Regulation No 2868/95. First, it contends that the mere delivery to a company’s registered-office address of a registered letter should not be sufficient to prove that the letter was duly notified to the addressee in a regular manner and that the latter was able to effectively take cognisance of it. Secondly, the fact that the letter was received by a person unknown to the appellant prevents it from being considered as really falling within the addressee’s sphere of influence.

6. Moreover, the appellant reproaches the General Court for imposing a specific duty of care on it, when it ruled that it was for the appellant to ensure the conditions for the receipt of any post which might be sent to it, inter alia, by registered post.

7. I consider that the sole ground concerns an alleged misapplication and, therefore, infringement of Rule 62(3) of Regulation No 2868/95. In particular, it relates to an interpretation of the concept of “due notification” within the meaning of that rule. Given that the ground constitutes a point of law, there are no doubts as to its admissibility.

8. However, as I will explain below, whilst the ground of appeal is as such not inadmissible, I consider that the arguments relied on in support of that ground cannot succeed and the ground is manifestly unfounded.

9. Concerning the appellant’s arguments in relation to the concept of “due notification”, within the meaning of Rule 62(3) of Regulation No 2868/95, first, it follows from settled case-law that the existence of valid notice is in no way subject to effective knowledge actually being acquired by the person who, according to the internal rules of the undertaking to which the decision is addressed, is competent to deal with the matter and that a decision is duly notified once it has been communicated to the person to whom it is addressed and the latter is in a position to take cognisance of it (judgment of 26 November 1985, Cockerill-Sambre v Commission, 42/85, EU:C:1985:471, paragraph 10).

10. It may be observed that the General Court regularly refers to those principles (see, inter alia, the following judgments and orders against which no appeal was brought: order of 22 January 2015, GEA Group v OHIM (engineering for a better world), T‑488/13, EU:T:2015:64, paragraphs 19 and 20 as well as judgments of 14 July 2016, Thun 1794 v EUIPO — Adekor (Decorative graphical symbols), T‑420/15, not published, EU:T:2016:410, paragraph 17, and of 4 May 2017, Kasztantowicz v EUIPO — Gbb Group (GEOTEK), T‑97/16, not published, EU:T:2017:298, paragraph 39 and 40).

11. In that connection, with regard to the regularity of the notification of EU acts, the Court of Justice has already made it clear that a decision is properly notified, for the purposes of the sixth paragraph of Article 263 TFEU and the third subparagraph of Article 297(2) TFEU, provided that it is communicated to the person to whom it is addressed and the latter is put in a position to become acquainted with it (judgment of 13 July 1989, Olbrechts v Commission, 58/88, EU:C:1989:323, paragraph 10; order of 2 October 2014, Page Protective Services v EEAS, C‑501/13 P, not published, EU:C:2014:2259, paragraph 30, and judgment of 21 February 2018, LL v Parliament, C‑326/16 P, EU:C:2018:83, paragraph 48).

12. Secondly, the Court has ruled that the registered office of a company is the only place which is required to be mentioned in the company’s official documents and to be recorded in the public registers. For that reason, notification of a measure to the registered office meets in all cases the requirement of legal certainty and, moreover, makes it possible for the company to take cognisance of the measure being notified. Consequently, companies have no right to require that notice be given at a place other than the registered office or to a particular person (judgment of 26 November 1985, Cockerill-Sambre v Commission, 42/85, EU:C:1985:471, paragraph 11).

13. Thus, for instance, in the case which gave rise to the judgment of 29 May 1991, Bayer v Commission (T‑12/90, EU:T:1991:25, paragraph 20), the General Court held that postal receipt provides conclusive evidence of the date of notification and takes precedence over other acknowledgements of receipt which, although sent by the European Commission to the parties, are of subsidiary status. The Court of Justice dismissed the appeal lodged against that judgment of the General Court and confirmed that an undertaking is taken to have notice of a Commission decision from the time when the envelope containing the decision, sent by registered post, arrived at the undertaking’s registered office (judgment of 15 December 1994, Bayer v Commission, C‑195/91 P, EU:C:1994:412, paragraph 21).

14. In the present case, it is not disputed that the registered letter in question was delivered at the registered office of Daico International. In paragraph 35 of the order under appeal, the General Court held that it follows from the document from the Spanish postal service that the letter in question was delivered on 4 December 2015, a fact which is also evidenced by the document issued by the Dutch postal service.

15. Therefore, I consider that the General Court did not err in law when, in paragraphs 31 to 37 of the order under appeal, it relied on the principles established by the case-law cited in points 9 and 12 of the present Position, and rightly held, in paragraph 36 of the order under appeal, that EUIPO created the conditions for the document to be notified to reach the addressee’s sphere of influence, and, in paragraph 37 of the order under appeal, that the fact that the registered letter in question was allegedly received by a person unknown to the appellant could not alter that conclusion.

16. Concerning the appellant’s arguments that the General Court imposed a specific duty of care on it in that regard, it need only be observed that those arguments are based on an incorrect reading of the order under appeal.

17. Indeed, the General Court does not impose a specific duty of care, which would weigh on the appellant. Rather, in paragraph 39 of the order under appeal, it merely pointed out that the necessary precautions for ensuring that the conditions for the receipt of post seemed not to have been taken in the present case.

18. It follows that the appellant’s sole ground of appeal should, in my opinion, be rejected as manifestly unfounded.

19. Since, in my view, the sole ground of appeal should be rejected, the appeal should be dismissed and the appellant ordered to pay the costs, in accordance with Articles 137 and 184(1) of the Rules of Procedure.’

6 For the same reasons as those given by the Advocate General, the appeal must be dismissed, in its entirety, as manifestly inadmissible.

7 Under Article 137 of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. Here, since the present order was adopted before the appeal was served on the defendant at first instance and, therefore, before the latter could have incurred costs, the appellant must be ordered to bear its own costs.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Daico International v EUIPO (EU trade mark - Revocation proceedings - Order) [2019] EUECJ C-36/19P_CO (04 July 2019) URL: http://www.bailii.org/eu/cases/EUECJ/2019/C3619P_CO.html Cite as: EU:C:2019:568, ECLI:EU:C:2019:568, [2019] EUECJ C-36/19P_CO

Court of Justice of the European Communities (including Court of First Instance Decisions)