Forbo Financial Services AG v European Union Intellectual Property Office (T-3/20)

Contents

Judgment of the General Court (Third Chamber)16 December 2020^note(EU trade mark — Opposition proceedings — Application for EU word mark Canoleum — Earlier international word mark MARMOLEUM — Relative ground for refusal — Late filing of the statement setting out the grounds of appeal — Inadmissibility of the appeal before the Board of Appeal — Application for restitutio in integrum — Sudden illness of the lawyer representing the applicant — Requirement to exercise due care — Evidential value of the solemnly affirmed statement made by the lawyer)In Case T‑3/20,Forbo Financial Services AG, established in Baar (Switzerland), represented by S. Fröhlich, lawyer,vEuropean Union Intellectual Property Office (EUIPO), represented by M. Fischer, acting as Agent,the other party to the proceedings before the Board of Appeal of EUIPO beingWindmöller GmbH, established in Augustdorf (Germany),THE GENERAL COURT (Third Chamber),composed of A.M. Collins (Rapporteur), President, Z. Csehi and G. De Baere, Judges,Registrar: E. Coulon,having regard to the application lodged at the Court Registry on 3 January 2020,having regard to the response lodged at the Court Registry on 10 March 2020,having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,gives the following

Judgment

Background to the dispute

1On 17 May 2017, Windmöller Flooring Products WFP GmbH, predecessor in title of Windmöller GmbH, the other party to the proceedings before the Board of Appeal of the European Union Intellectual Property Office (EUIPO), filed an application for registration of an EU trade mark with EUIPO pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1)).

2The trade mark in respect of which registration was sought is the word sign Canoleum.

3The goods in respect of which registration was sought are in Classes 19 and 27 under the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended.

4The trade mark application was published in European Union Trade Marks Bulletin No 2017/122 of 30 June 2017.

5On 27 September 2017, the applicant, Forbo Financial Services AG, filed a notice of opposition pursuant to Article 41 of Regulation No 207/2009 (now Article 46 of Regulation 2017/1001) to registration of the trade mark applied for in respect of the goods referred to in paragraph 3 above.

6The opposition was based on the international registration registered on 11 September 1997 under No 683531, with protection extending to the European Union and a number of EU Member States, of the word mark MARMOLEUM, for goods in Classes 19 and 27.

7The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation No 207/2009 (now Article 8(1)(b) of Regulation 2017/1001).

8By decision of 12 February 2019, notified on the same day, the Opposition Division dismissed the opposition on the ground, in essence, that there was no likelihood of confusion on the part of the relevant public, within the meaning of Article 8(1)(b) of Regulation No 207/2009, between the marks at issue.

9On 9 April 2019, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 66 to 71 of Regulation 2017/1001, against the decision of the Opposition Division.

10However, the applicant did not file the statement setting out the grounds of appeal until 26 June 2019, outside of the time limit provided for in Article 68(1), final sentence, of Regulation 2017/1001, which expired at midnight on 12 June 2019. In annex to that statement, it submitted an application for restitutio in integrum pursuant to Article 104 of that regulation in which it claimed, in essence, that the lawyer responsible for its case file in the proceedings before EUIPO (‘the first lawyer’) had not been able to file that statement within the prescribed time limit due to a serious illness he had unforeseeably contracted. To substantiate that claim, it presented two solemnly affirmed statements, one from the lawyer and the other from his wife.

11By decision of 9 October 2019 (‘the contested decision’), the Second Board of Appeal of EUIPO declared the application for restitutio in integrum admissible, but dismissed it as unfounded. It held, in essence, that the first lawyer ‘[had] not provided sufficient evidence that he had taken the due care required by the circumstances’ (paragraph 16 of the contested decision).

12In particular, in the first place, after acknowledging that in exceptional cases, a sudden illness could constitute an unforeseeable circumstance justifying the granting of restitutio in integrum (paragraph 18 of the contested decision), the Board of Appeal held that the first lawyer had failed to provide sufficient proof of the sudden illness he claimed to have suffered, since the solemnly affirmed statements provided by both him and his wife have only limited evidential value (paragraph 19 of the contested decision). More specifically, the Board criticised him for having failed to produce a medical certificate (paragraphs 19 and 20 of the contested decision). In that regard, it argued that a sudden illness could represent an unforeseeable circumstance only if it was serious enough to prevent the person concerned from taking the appropriate steps to comply with the time limit, such as notifying a colleague at the law firm concerned. In such a case, ‘it [would be] appropriate to presume that medical treatment is, in principle … required’ (paragraph 20 of the contested decision).

13In the second place, the Board of Appeal criticised the first lawyer for having failed to provide sufficient evidence that ‘he had not even had the chance to ask his wife to phone a [colleague at the law firm concerned] to instruct him to sign and send the statement setting out the grounds of appeal’ (paragraph 21 of the contested decision).

14In the third place, the Board of Appeal noted that there was no sufficient evidence that, on 12 June 2019, none of the first lawyer’s colleagues, who could have signed and sent the statement of grounds in his place, was present at the premises of the law firm concerned (paragraph 22 of the contested decision).

15In the fourth place, the Board of Appeal held that it was not sufficiently proved that, on 12 June 2019, the statement setting out the grounds of appeal was already finalised and verified by the applicant and, therefore, that the illness was indeed the reason that the time limit was not complied with (paragraphs 23 to 25 of the contested decision).

16Therefore, the Board of Appeal dismissed the appeal as inadmissible on the basis of Article 23(1)(d) of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation (EU) 2017/1001, and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104, p. 1).

Forms of order sought

17The applicant claims that the Court should:– annul the contested decision;– order EUIPO to pay the costs.

18EUIPO contends that the Court should:– dismiss the action;– order the applicant to pay the costs.

Law

19The applicant raises a single plea, alleging infringement of Article 104 of Regulation 2017/1001, read in conjunction with Article 97(1)(f) of that regulation.

20In essence, the applicant submits that it was impossible for the first lawyer to file the statement setting out the grounds of appeal within the prescribed time limit due to his unforeseeably contracting a serious illness, with the symptoms of acute food poisoning, and despite having acted with all due care required by the circumstances. It claims that the evidence it provided in that case was sufficient to justify restitutio in integrum being granted to it, and considers that, in the contested decision, the Board of Appeal applied excessively strict criteria for establishing the relevant facts. In particular, it criticises the Board of Appeal for failing to take sufficient account of the circumstances of the case and for its ‘wholesale’ rejection of the solemnly affirmed statements.

21In the first place, the applicant puts forward a number of arguments intended to establish that the first lawyer acted with all due care required by the circumstances.

22In that regard, first, the applicant argues that the first lawyer specialises in trade mark law and has over 20 years’ professional experience. It also states that the law firm to which he belongs has a sufficiently reliable system for controlling and monitoring time limits. It describes the different procedures and measures which have been put in place at the firm in that regard.

23Secondly, by reference to the solemnly affirmed statements of the first lawyer and his wife, the applicant describes the circumstances which led to the failure to comply with the time limit for filing the statement setting out the grounds of appeal. It argues that that time limit, which expired at midnight on 12 June 2019, had been duly entered in the electronic and paper calendars used by the law firm concerned for managing deadlines and that, even before that date, that statement had been finalised, sent to the lawyers representing the applicant in Switzerland, and verified by the applicant itself. It states that the only members of the trade mark law department of the firm in question who were present on that date were the first lawyer and the employee responsible for trade mark cases, as the other lawyers from that department were on leave or at external meetings. In the morning, the first lawyer asked that employee to prepare the statement setting out the grounds of appeal by attaching the annexes and the list of annexes to it and presenting it to him for signature. Immediately afterwards, he attended a number of telephone conferences before having a relatively late lunch in a restaurant located near the firm. When she was about to leave the firm at the end of her working day, at about 17.00, that employee asked the first lawyer about that statement, and he stated that he would sign it and send it to EUIPO himself. At around 18.30, the first lawyer suddenly fell ill, which prevented him not only from signing that statement and sending it to EUIPO, but also, due to the seriousness of his symptoms, from thinking to ask someone else to complete those tasks for him. The following day, namely on 13 June 2019, he realised that he had not sent the statement setting out the grounds of appeal to EUIPO.

24In the second place, as regards the evidence intended to corroborate the circumstances set out in paragraph 23 above, the applicant criticises the Board of Appeal for having rejected the two solemnly affirmed statements it had produced ‘wholesale’, which is to say without carrying out a sufficient overall assessment of their content, without making any observations on the extent to which that content was detailed, sensible and generally reliable, and without having sufficiently taken account of the circumstances of the present case. Moreover, it states that there was no other evidence capable of corroborating the content of the solemnly affirmed statements which could reasonably be required in the present case. It argues, more specifically, that a medical certificate could not have been produced given that, due to his symptoms, the first lawyer was unable to consult a physician when his illness suddenly developed. According to the applicant, it was also impossible to obtain such a certificate the following day, since no physician would have been able to certify an illness which had occurred the day before. It adds that, in the lawyer’s view, it was pointless to consult a physician the following day, since the symptoms of his illness had already abated.

25As regards the solemnly affirmed statement of the first lawyer’s wife, the applicant disputes the Board of Appeal’s assertion, in paragraph 19 of the contested decision, that it has only limited evidential value on the ground that his wife is not a ‘neutral third person’. It submits that it cannot be held that a wife automatically has a personal interest in matters relating to the professional life of her husband, and states that the statement at issue is a solemnly affirmed statement for the purposes of Article 97(1)(f) of Regulation 2017/1001.

26The applicant also disputes that an illness cannot constitute an exceptional circumstance in which restitutio in integrum may be granted unless the illness requires medical treatment. According to the applicant, the need for medical treatment does not constitute a purely objective circumstance for which evidence can easily be produced. For various reasons, such as high tolerance for pain or apprehension about the medical professions, some people would not consult a physician even if they were suffering serious symptoms.

27In response to the Board of Appeal’s finding that the first lawyer did not provide sufficient evidence that he had not even had the chance to ask his wife to phone the law firm concerned to instruct one of his colleagues to sign and send the statement of grounds of appeal, the applicant argues that such evidence could be provided only by way of the solemnly affirmed statements produced in the present case.

28Moreover, the applicant considers that the question whether, at the time of the onset of the first lawyer’s illness, any of his colleagues from the law firm concerned were available to sign and send the statement of grounds of appeal in his place is ‘of a purely hypothetical nature’ and irrelevant. It claims that, due to his physical state, that lawyer was absolutely incapable of informing anyone.

29Lastly, the applicant objects to the Board of Appeal’s assertion that it was not sufficiently proven that the first lawyer’s illness was indeed the reason the time limit was not complied with. It submits that, contrary to what the Board of Appeal suggests, the statement setting out the grounds of appeal had already been finalised and needed only to be signed. It considers that there is no reason to doubt the content of the solemnly affirmed statement of the lawyer in that regard, and argues that it could not be required, as the Board of Appeal does in paragraph 25 of the contested decision, to present an exchange of correspondence between the first lawyer and the lawyers representing the applicant in Switzerland because that was confidential correspondence between lawyers. In any event, when the first lawyer fell ill, at 18.30, there were still almost six hours remaining before the expiry of the time limit, during which that statement could have been prepared and sent. In the alternative, the applicant has annexed to the request an exchange of correspondence between the law firm concerned and the lawyers representing it in Switzerland, from which it is clear that the latter approved the statement setting out the grounds of appeal as early as 3 June 2019.

30In the third place, the applicant submits that the other requirements for restitutio in integrum were fulfilled. In that regard, first, it argues that the time limit for filing the statement setting out the grounds of appeal is a time limit which is open to restitutio in integrum. It states that, since restitutio in integrum was not granted, the failure to comply with the time limit for filing that statement had the direct consequence of causing the loss of its right of appeal, which was dismissed as inadmissible under Article 23(1)(d) of Delegated Regulation 2018/625. Secondly, it states that, in accordance with Article 104(2) of Regulation 2017/1001, the application for restitutio in integrum was filed in writing within two months of the removal of the obstacle to compliance with the time limit, as it became apparent, on 13 June 2019, that the statement had not been sent. The omitted act, in the present case the sending of the statement setting out the grounds of appeal, was completed within that same time limit. Thirdly, it states that the application for restitutio in integrum was reasoned and that the fee for restitutio in integrum was paid under direct debit authorisation of 25 June 2019, which reached EUIPO by courier on 26 June 2019. Fourthly, it claims that the grounds for exclusion provided for in Article 104(5) of Regulation 2017/1001 were not applicable in this case.

31EUIPO disputes the applicant’s arguments. It contends that the Board did not err in law in dismissing the application for restitutio in integrum and, therefore, declaring the appeal inadmissible.

32EUIPO contends that a sudden illness could constitute an unforeseeable circumstance justifying the granting of restitutio in integrum only in exceptional cases, since undertakings should ordinarily be able to put in place an alternative solution in case of illness. It contends that, in such a case, the circumstances that led to the failure to comply with the time limit must be set out particularly carefully and proven irrefutably. Yet, in the present case, the applicant has merely submitted two solemnly affirmed statements. Moreover, one of those was from the person concerned, while the other was from his wife.

33EUIPO denies that the Board of Appeal wholly rejected the solemnly affirmed statement of the first lawyer, or fundamentally called into question the credibility thereof. It merely observed that, in accordance with settled case-law, since the person making the application for restitutio in integrum has a clear vested interest in the application being granted, his statement could have only limited evidential value, and must therefore be corroborated by additional evidence. The same applies to the solemnly affirmed statement of that lawyer’s wife, who is clearly not a neutral third person.

34EUIPO considers that such additional evidence could easily have been provided.

35Thus, the applicant should have been able to produce a medical certificate. As regards the description of the symptoms experienced by the first lawyer, it was obvious that he should immediately have sought emergency medical care rather than, as stated in his solemnly affirmed statement, ‘returning home by taxi, through great effort’. EUIPO acknowledges that that lawyer was free not to seek medical attention, but considers that it therefore fell to him to provide proof having evidential value comparable to that of a medical certificate, objectively establishing the seriousness of the alleged illness.

36Recalling the severity of the alleged symptoms, EUIPO rejects as unrealistic the applicant’s assertion that, the following day, a physician would not have been able to establish the illness that the first lawyer claimed to have had.

37EUIPO also contends that it would have been easy for the first lawyer to substantiate his allegation that, on the evening of the day the time limit expired, there were no lawyers – and in particular none from the trade mark law department of the law firm concerned – present at the law firm in question, by producing a confirmation from those lawyers that they were indeed absent at that time. It disputes that that question is of a purely hypothetical nature.

38Similarly, according to EUIPO, it would have been easy to substantiate, at the proceedings before the Board of Appeal, the assertion that the statement setting out the grounds of appeal had already been finalised and verified by the applicant or the lawyers representing it in Switzerland, inter alia by producing an exchange of correspondence between the latter lawyers and the first lawyer, redacting confidential passages where necessary. The fact that the correspondence produced for the first time before the Court seems to confirm that that statement had been verified by the applicant as early as 3 June 2019 does not change the fact that the Board of Appeal was not able to access that evidence.

39EUIPO adds that, even if the circumstances surrounding the late filing of the statement setting out the grounds of appeal – which are relied on by the applicant – were proved, the lack of due care alleged by the Board still applies. It considers that the system for controlling and monitoring time limits at the law firm must take account of such incidents and provide an institutional guarantee of compliance with the time limits through organisational measures. In the present case, an institutional guarantee was no longer being provided, at the latest, when the first lawyer found himself alone in the office on the day the time limit expired.

40Lastly, EUIPO considers that it is contrary to the requirement to exercise due care to have delayed, for no apparent reason, sending the statement of grounds of appeal until after 18.30 on the day the time limit expired when the statement was ready that morning. It also considers it to be inexplicable that that statement was filed not the following day, but a full two weeks after the expiry of the time limit.

41Under Article 68(1), final sentence, of Regulation 2017/1001, within four months of the date of notification of the decision against which an appeal has been brought, a written statement setting out the grounds of appeal is to be filed. In accordance with Article 23(1)(d) of Delegated Regulation 2018/65, where that statement has not been filed within that time limit, the Board of Appeal is to reject the appeal as inadmissible.

42In the present case, it is apparent from the documents before the Court, and common ground between the parties, that the Opposition Division had given its decision on 12 February 2019 and that, following the appeal lodged by the applicant on 9 April 2019, the latter had not filed the statement setting out the grounds of appeal until 26 June 2019, two weeks after the four-month time limit referred to in paragraph 41 above had expired, which was at midnight on 12 June 2019.

43Article 104 of Regulation 2017/1001, entitled ‘Restitutio in integrum’, provides, in particular, as follows:1. The applicant for or proprietor of an EU trade mark or any other party to proceedings before the Office who, in spite of all due care required by the circumstances having been taken, was unable to comply with a time limit vis-à-vis the Office shall, upon application, have his rights re-established if the obstacle to compliance has the direct consequence, by virtue of the provisions of this Regulation, of causing the loss of any right or means of redress.2. The application shall be filed in writing within two months of the removal of the obstacle to compliance with the time limit. The omitted act shall be completed within this period. The application shall only be admissible within the year immediately following the expiry of the unobserved time limit. In the case of non-submission of the request for renewal of registration or of non-payment of a renewal fee, the further period of six months provided in the third sentence of Article 53(3) shall be deducted from the period of one year.3. The application shall state the grounds on which it is based and shall set out the facts on which it relies. It shall not be deemed to be filed until the fee for re-establishment of rights has been paid.4. The department competent to decide on the omitted act shall decide upon the application.5. This Article shall not be applicable to the time limits referred to in paragraph 2 of this Article, Article 46(1) and (3) and Article 105.’

44It is apparent from the documents before the Court, and common ground between the parties, that among the requirements for restitutio in integrum mentioned in paragraph 43 above, the only one considered not to have been fulfilled in this case by the Board of Appeal is the requirement that the party must act with all due care required by the circumstances.

45In accordance with Article 104(1) of Regulation 2017/1001, the applicant for or proprietor of an EU trade mark or any other party to proceedings before EUIPO is subject to the requirement to exercise due care. However, if those persons are represented, the representative is subject to the requirement to exercise due care just as much as those persons. Since that person acts on behalf of and in the name of the applicant for or proprietor of an EU trade mark or any other party to proceedings before EUIPO, his or her actions must be regarded as being the actions of those persons (see judgment of 5 April 2017, Renfe-Operadora v EUIPO (AVE), T‑367/15, not published, EU:T:2017:255, paragraph 25 and the case-law cited).

46Moreover, according to the case-law, the expression ‘all due care required by the circumstances’ requires there to be an internal system for controlling and monitoring time limits such that involuntary non-compliance with time limits can be generally ruled out. It follows that restitutio in integrum may be granted only in the case of exceptional events, which cannot therefore be predicted from experience (judgments of 28 June 2012, Constellation Brands v OHIM (COOK’S), T‑314/10, not published, EU:T:2012:329, paragraph 19, and of 5 April 2017, AVE, T‑367/15, not published, EU:T:2017:255, paragraph 26).

47Furthermore, it must be observed that the conditions for the application of Article 104(1) of Regulation 2017/1001 must be interpreted strictly. Compliance with time limits is a matter of public policy and restitutio in integrum of a time limit after its expiry is capable of undermining legal certainty (see, to that effect, judgment of 16 June 2015, H. P. Gauff Ingenieure v OHMI – Gauff (Gauff JBG Ingenieure), T‑585/13, not published, EU:T:2015:386, paragraph 25 and the case-law cited).

48In the contested decision, the Board of Appeal did not in any way call into question the adequacy and reliability of the system for controlling and monitoring time limits used by the law firm concerned. It is thus to no avail that EUIPO criticises that law firm, in the response, for having failed to provide, in that system, an ‘institutional guarantee’ of compliance with time limits in a case such as this, where the victim of a sudden incident finds himself or herself alone in the office on the day of expiry of the time limit (see paragraph 39 above). The contested decision is not based on such an alleged failure to take due care.

49In the contested decision, neither the fact that the first lawyer did not send EUIPO the statement of grounds before 18.30 on the day the time limit expired, when it was ready that morning, nor the fact that he only submitted that statement two weeks after the time limit expired, and not the day after the incident, were found by the Board of Appeal to constitute a failure to take due care. It is thus also to no avail that EUIPO refers to those circumstances in the response.

50In reality, in the contested decision, the Board of Appeal proceeded on the basis of the, entirely correct, premiss that, in exceptional cases, a sudden illness can constitute an unforeseeable event justifying the granting of restitutio in integrum (see paragraph 18 of the contested decision). Nevertheless, it held, in essence, that the applicant had not provided sufficient evidence of the existence and severity of the illness claimed by the first lawyer, nor, in any event, had it provided sufficient evidence that the statement of grounds was already finalised and validated when the lawyer became ill. More specifically, it held that the evidence provided by the applicant in support of its application for restitutio in integrum, namely the solemnly affirmed statements of that lawyer and his wife, were not sufficient to establish those facts.

51In that regard, it must be recalled that a solemnly affirmed statement constitutes admissible evidence for the purposes of Article 97(1)(f) of Regulation 2017/1001. According to settled case-law, in order to assess the evidential value of a document, it is necessary to verify the likelihood and the accuracy of the information which that document contains. Account must be taken, inter alia, of the origin of the document, the circumstances in which it came into being, the person to whom it was addressed and of whether it seems from the content to be sound and reliable (see judgment of 8 May 2017, Les Éclaires v EUIPO – L’éclaireur International (L’ECLAIREUR), T‑680/15, not published, EU:T:2017:320, paragraph 72 and the case-law cited).

52Furthermore, although it is clear from the case-law, in particular from the judgment of 16 June 2015, Gauff JBG Ingenieure (T‑585/13, not published, EU:T:2015:386, paragraphs 28 to 31), which the Board of Appeal relies on in paragraph 19 of the contested decision, that a statement drawn up in the interests of its author has only limited evidential value and must be corroborated by additional evidence, this does not, however, allow the departments of EUIPO to conclude as a matter of principle that such a statement is, in itself, devoid of any credibility. The evidential value of such a statement, taken in isolation or in combination with other evidence, depends, inter alia, on the circumstances of the case.

53However, in the present case, it must be stated, as the applicant rightly submits, that as a matter of fact, the Board of Appeal denied all credibility to the two solemnly affirmed statements at issue and dismissed the detailed explanations therein from the outset, on the basis that, as regards the statement of the first lawyer, the latter had a vested interest in the application for restitutio in integrum being granted and, as regards the statement of that lawyer’s wife, she was not a ‘neutral third person’ in the light of her ‘close personal relationship’ with him.

54In so doing, the Board of Appeal failed to take due consideration of the particular circumstances of the case.

55First of all, as regards the statement given by the first lawyer, the Board of Appeal disregarded the fact that he is a legal professional required to follow a code of ethics and uphold moral standards, which prohibits him, inter alia, from deliberately misleading the authorities and, in particular, the court. Furthermore, if he were guilty of giving a solemnly affirmed statement that was false, that would not only make him subject to criminal sanctions, but would also jeopardise his professional reputation and cast serious doubts on his integrity.

56It must be held that a solemnly affirmed statement made by a lawyer constitutes, in itself, solid evidence of the information provided therein, where it is clear, devoid of contradictions and consistent, and where there is no factual evidence capable of calling its truthfulness into question.

57Secondly, the Board of Appeal did not take into account the fact – which is at the heart of the present case – that the incident which the first lawyer claims was the reason the time limit was not complied with was a personal one, and that he was best placed to provide information on that incident and, in particular, on the symptoms and ailments he had suffered. It focused solely on the fact, which is admittedly correct but does not preclude that established above, that that lawyer had a personal interest in the application for restitutio in integrum being granted to the applicant, since he had allowed the time limit for submitting the statement of grounds to expire.

58Lastly, as regards the solemnly affirmed statement given by the wife of the first lawyer, although it is indisputable that there is a ‘close personal relationship’ between them given the fact that they are married, the Board of Appeal should have taken into account that, as the applicant rightly argues, the persons who witness an incident such as that which occurred in the present case, and who are therefore able to attest to the facts relating thereto, are usually from the immediate circle of the person concerned. Furthermore, the wife of that lawyer, like the lawyer himself, would be subject to criminal sanctions if she were to make a solemnly affirmed statement that was false.

59The Board of Appeal also failed to take into account that in the present case, additional evidence to corroborate the content of the two solemnly affirmed statements could not reasonably be required or was unavailable. In that regard, it must be observed, as was quite rightly observed by the applicant in the application, that the present case concerns a singular and accidental event which was personal to the person concerned, and that it is therefore different from the situations generally referred to in the case-law relating to the evidential value of solemnly affirmed statements, where the latter are presented to attest to facts that are purely objective and not of a personal nature, such as the genuine use of a trade mark (judgment of 12 March 2020, Maternus v EUIPO – adp Gauselmann (Jokers WILD Casino), T‑321/19, not published, EU:T:2020:101, paragraphs 45 and 46), or the acquisition by a mark of distinctive character through use (judgment of 26 June 2018, Jumbo Africa v EUIPO – ProSiebenSat.1 Licensing (JUMBO), T‑78/17, not published, EU:T:2018:383, paragraphs 55 and 56).

60Accordingly, it could not be required of the first lawyer that he consult a physician on the very evening of the onset of his illness and obtain a medical certificate. Indeed, given the nature of the symptoms caused by the illness, it is perfectly understandable that, as the lawyer explained in his solemnly affirmed statement, he preferred to return home immediately by taxi. Moreover, since, in the majority of cases, persons suffering from this sort of illness recover by themselves relatively quickly with no need for medical treatment, it is not surprising that that lawyer did not consider it necessary subsequently to undergo a medical examination.

61It must also be acknowledged that, because of the symptoms, the first lawyer was suffering, and in particular his state of confusion, he was not capable of asking one of his colleagues from the law firm concerned to sign and send the statement of grounds of appeal in his place. The question of whether or not, at the time of the onset of that lawyer’s sudden illness, his colleagues were present at that law firm’s premises to do so is, therefore, irrelevant.

62For the same reasons, it is hardly surprising that the first lawyer did not have the presence of mind to ask his wife, when he arrived at home, to contact the law firm concerned and ask one of his colleagues there to complete that task for him. Since that fact can be established only by the solemnly affirmed statements produced in this case, it is to no avail that the Board of Appeal complains that the applicant did not corroborate it with additional evidence.

63Lastly, it must be held that the Board of Appeal is not justified in criticising the applicant for not having submitted, during the administrative procedure, evidence to corroborate the assertion made by the first lawyer in his solemnly affirmed statement that, on the day the time limit at issue expired, the statement setting out the grounds of appeal had already been finalised and verified. As an experienced legal professional, and having regard to the considerations set out in paragraph 55 above, that lawyer cannot reasonably have expected that the Board of Appeal might call into question, to such an extent, the truthfulness of his explanations. Moreover, it must be observed, in that regard, that it is clear from the exchange of correspondence between that lawyer and the lawyers representing the applicant in Switzerland, which the applicant has submitted in the present proceedings, that the statement setting out the grounds of appeal had indeed been finalised and verified as early as 3 June 2019.

64It follows from all of the foregoing considerations that the single plea must be upheld and, therefore, that the contested decision must be annulled.

Costs

65Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since EUIPO has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.

Operative part

On those grounds,THE GENERAL COURT (Third Chamber),hereby:

1.Annuls the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 9 October 2019 (Case R 773/2019‑2);

2.Orders EUIPO to pay the costs.

Delivered in open court in Luxembourg on 16 December 2020.