13The facts of the case are set out at paragraphs 1, 3 to 13 and 16 to 19 of the judgment under appeal as follows:1 On 12 July 2007, [RT Mediasolution’s] predecessor in law filed an application for registration of a Community trade mark with [OHIM] under [Regulation No 40/94]....3 The application for the Community trade mark was published in Community Trade Marks Bulletin No 068/2007 of 24 December 2007.4 On 25 March 2008, the applicant [Jager & Polacek] filed a notice of opposition, pursuant to Article 42 of Regulation No 40/94, … to registration of the mark applied for in respect of all the goods and services covered by the application.5 The opposition was based on the earlier non-registered trade mark Redtube and on the use of the www.redtube.com website. The ground relied on in support of the opposition was that set out in Article 8(4) of Regulation No 40/94 … .6 The applicant stated on the opposition form that the opposition fee was to be transferred to OHIM’s account on 26 March 2008.7 By letter of 10 April 2008, OHIM’s Trade Marks Department informed the applicant that OHIM had received the opposition fee only on 1 April 2008, after the expiry of the opposition period, and that it therefore took the view that the opposition had not been duly entered. OHIM also stated that the opposition period would be deemed to have been complied with if the transfer order had been given before the expiry of that period. In addition, OHIM stated that if the applicant had made the payment within the last ten days of the opposition period, it would be required to pay a surcharge of 10% on the opposition fee by no later than 11 May 2008.8 By letter of 8 May 2008, the applicant furnished evidence that, on 26 March 2008, it had given its banking establishment the order to transfer the opposition tax. It also furnished evidence of payment of the 10% surcharge on 6 May 2008. In addition, it stated that it became aware of the trade mark application only on the afternoon of 25 March 2008, that is, on the last day of the opposition period. It therefore requested RT Mediasolutions to withdraw its trade mark application, but the request was not complied with. When it filed its notice of opposition (at 17.07 by fax), the Austrian banks had been closed for more than two hours and there was no longer anyone present in the applicant’s accounting department. It was therefore not possible for it to give the order to transfer the opposition fee to a banking establishment that day. … Moreover, the applicant maintained that, according to the German version of Article 8 of Commission Regulation (EC) No 2869/95 of 13 December 1995 on the fees payable to the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OJ 1995 L 303, p. 33), the period for payment was deemed to have been complied with in the present case because the surcharge had been paid.9 By letters of 20 May 2008, OHIM’s Trade Marks Department sent a communication to the applicant and to RT Mediasolutions (“the communication of 20 May 2008”). In those letters OHIM stated that the opposition was found to be admissible in so far as it was based on the earlier non-registered mark Redtube and notified the applicant and RT Mediasolutions of the period within which the contentious part of the opposition proceedings was to commence, in accordance with Rule 18(1) of the [Implementing Regulation]. In particular, OHIM pointed out that the cooling off period was to expire on 21 July 2008 and that the contentious part of the opposition proceedings was to commence on 22 July 2008. Moreover, it fixed periods within which the applicant was to provide evidence to substantiate its opposition and RT Mediasolutions to reply to that evidence.10 By letter of 10 September 2008, RT Mediasolutions submitted that the opposition fee had not been paid in sufficient time and requested OHIM to annul the communication of 20 May 2008 and find that the opposition was to be treated as not having been duly entered.11 On 2 October 2008, OHIM’s Trade Marks Department sent a letter headed “Correction” (Korrektur) to the applicant. In that letter OHIM informed the applicant that the [communication of 20 May 2008] had been sent in error and that it was to be regarded as having no effect. OHIM also notified the applicant that the opposition fee was deemed not to have been paid within the opposition period and the opposition was to be treated as not having been duly entered. Furthermore, OHIM drew the applicant’s attention to the fact that it was possible to request the adoption of a formal written decision. The applicant submitted such a request on 28 November 2008.12 On 22 January 2009, the Opposition Division adopted a decision to the effect that the opposition was to be treated as not having been duly entered. The Opposition Division considered that the two conditions laid down in Article 8(3) of Regulation No 2869/95, that is, requiring that the transfer order be given within the opposition period and the surcharge paid, were cumulative. …13 On 20 March 2009, the applicant lodged an appeal against the Opposition Division’s decision. In the statement setting out the grounds of the appeal of 22 May 2009, the applicant submitted that, on 20 May 2008, OHIM had adopted a decision to the effect that the opposition was admissible and that decision had not been properly revoked in accordance with the procedure laid down in Article [77a of Regulation No 40/94]. The applicant also maintained that the two conditions laid down in Article 8(3) of Regulation No 2869/95 were alternative, not cumulative....16 By the [contested decision], the Fourth Board of Appeal of OHIM dismissed the appeal.17 The Board of Appeal stated that the opposition period expired on 25 March 2008, since 24 March 2008 was a public holiday. The opposition fee was paid after the expiry of the opposition period, contrary to the provisions of [the second sentence of] Article [42(3) of Regulation No 40/94]. It was also established that the applicant gave the transfer order to its banking establishment only after the expiry of the opposition period, namely on 26 March 2008. Consequently, in accordance with [the second sentence of] Article [42(3) of Regulation No 40/94], the opposition was to be treated as not having been duly entered.18 The Board of Appeal considered that the Opposition Division had correctly interpreted Article 8(3) of Regulation No 2869/95.19 According to the Board of Appeal, the [communication of 20 May 2008] did not constitute a decision capable of being revoked under Article [77a of Regulation No 40/94], but a simple measure of organisation of procedure.’
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