Judgment_paragraph 23 · Bell & Ross BV v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (C-426/10 P)

23The General Court recalled that Article 43(6) of its Rules of Procedure provides for a 10-day period within which to lodge the original of an application transmitted by fax. Taking account of this additional period, the original of the application should have reached the Registry before the expiry of that period on 1 February 2010. Since the original of the application was received on 5 February 2010, however, the application was lodged out of time, and there was no excusable error permitting derogation from the time-limit for bringing proceedings, on the following grounds:15 The application was received by fax at the Registry of the General Court on 22 January 2010, namely before expiry of the time-limit for bringing an action.16 However, pursuant to Article 43(6) of the Rules of Procedure, the date on which a copy of the signed original of a pleading is received at the Registry of the Court by fax is to be deemed to be the date of lodgment for the purposes of compliance with procedural time-limits only if the signed original of the pleading is lodged at the Registry no later than 10 days after receipt of the fax.17 In the present case, on 1 February 2010 the applicant lodged seven uncertified copies of the application at the Registry of the Court. The signed original of the application was received at the Registry of the Court on 5 February 2010, that is to say, after the expiry of the 10-day period provided for in Article 43(6) of the Rules of Procedure. Thus, in accordance with that provision, only the date of lodgment of the signed original of the application, namely 5 February 2010, can be taken into consideration for the purposes of the time-limit for bringing an action. Consequently, it must be concluded that the application was lodged out of time [order of 28 April 2008 in Case T-358/07 Publicare Marketing Communications v OHIM, not published in the ECR, paragraph 13].18 In its letter of 12 February 2010, the applicant asserted the existence of an excusable error to justify a derogation from the time-limit at issue.19 In that regard, it must be recalled that, concerning time-limits for initiating proceedings, the concept of excusable error must be strictly construed and can concern only exceptional circumstances in which, in particular, the conduct of the institution concerned has been, either alone or to a decisive extent, such as to give rise to a pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally experienced trader (Case T-12/90 Bayer v Commission [1991] ECR II-219, paragraph 29; and order of 11 December 2006 in Case T-392/05 MMT v Commission, not published in the ECR, paragraph 36 and the case-law cited).20 In the present case, the applicant asserts that, having used a service provider to make the required copies, it is able to account for the failure to produce the signed original only by a mix-up, during the preparation of the file lodged at the Registry of the Court, between the copies and the signed original of the application, returned by the service provider.21 In addition, the applicant’s lawyer states that he usually signs in black ink, there being no rule prescribing the use of an ink of a different colour.22 Consequently, given the quality of the copies made, it was extremely difficult to distinguish the signed original from a copy, as the original signature was the same colour as its copy.23 The applicant also submits that, in requiring itself to try to smudge the ink of the signature by applying a damp cloth to it in order to identify the signed original of the application, the Registry of the Court applied a standard of diligence which cannot systematically be required of applicants.24 The applicant adds finally that point 57(o) of the Practice Directions to Parties, which permits the regularisation, within a reasonable period, of applications which do not comply with certain procedural rules, allows the production of the missing true certified copies of the application, with the result that that point is likely to reduce applicants’ vigilance as to the need to distinguish the signed original of the application from copies of it.25 However, in the light of the foregoing, the applicant has not demonstrated the existence of exceptional circumstances, or provided proof of the diligence required of a normally experienced trader within the meaning of the case-law recalled at paragraph 19 above.26 Indeed the applicant itself admits that it was the source of a mix-up during the preparation of the file to be sent to the Registry of the Court.27 Furthermore, it does not appear that the difficulty in distinguishing the signed original of the application from the copies could not be overcome by recourse to any method allowing the signed original of the application to be treated separately, in such a way as to avoid its being lodged at the Registry of the Court after the expiry of the 10-day period provided for in Article 43(6) of the Rules of Procedure.28 Moreover, it must be noted that, first, failure to lodge the signed original of the application at the Registry of the Court within that period is not one of the cases for which regularisation of applications is provided at points 55 to 59 of the Practice Directions to Parties and, secondly, point 57(o) of those directions allows, in the interest of applicants, deferral of the Court’s assessment of the conditions of admissibility of the application prescribed in the second subparagraph of Article 43(1) of the Rules of Procedure, which require the signed original of the application to be distinguished from copies. It follows that the possibility of regularisation allowed by point 57(o) could not lead to applicants reducing their vigilance with respect to the need to distinguish the signed original of the application from copies.29 In any event, it was for the applicant to distinguish the signed original of the application from the copies.30 It follows from all of the foregoing that the application is out of time and must be dismissed as manifestly inadmissible, and there is no need to serve it on OHIM.’

Bell & Ross BV v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (C-426/10 P)

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