Formula E not fast enough: proof of genuine use not submitted in time, time limit for bringing an action against this decision expired
12-04-2019 Print this page
The General Court did not err in law in deciding that the time limit for bringing an action against the contested decision had expired: article 4(4) of the decision concerning electronic communication with and by the Office must be interpreted as meaning that notification will be deemed to have taken place on the fifth calendar day following the day on which EUIPO placed the document in the user’s inbox, unless the actual date of notification can be accurately established as a different date within that period of time.
The Green Effort acquired rights over the word mark Formula E, registered in 2011. (FIA) filed an application for revocation of the contested mark for all the goods and services on the ground that it had not been put to genuine use within a continuous period of five years.
On 21 March 2016, the Cancellation Division of EUIPO invited The Green Effort to submit, by 21 June 2016, proof of genuine use of the contested mark. Since that proof was submitted on 22 June 2016, in disregard of the time limit prescribed, it was not taken into account. On 27 July 2016, The Green Effort filed an application for restitutio in integrum with the Cancellation Division of EUIPO in order have its rights to submit that proof re-established. By decision of 8 September 2016, the Cancellation Division rejected the application and revoked the contested mark in its entirety. On 5 October 2016, the applicant filed a notice of appeal with EUIPO against the decision of the Cancellation Division. By the contested decision, the Second Board of Appeal of EUIPO dismissed the appeal.
By the order under appeal, the General Court found that the contested decision had been notified to The Green Effort on 19 September 2017, with the result that, in accordance with Article 58 of its Rules of Procedure, the time limit for bringing an action under Article 65(5) of Regulation No 207/2009 had expired on 29 November 2017. Given that the application was lodged at the General Court Registry on 4 December 2017, the General Court held that the action was brought out of time.
The CJEU finds that The General Court did not err in law in deciding that the time limit for bringing an action against the contested decision had expired. According to the CJEU, the article 4(4) of the decision concerning electronic communication with and by the Office must be interpreted as meaning that notification will be deemed to have taken place on the fifth calendar day following the day on which EUIPO placed the document in the user’s inbox, unless the actual date of notification can be accurately established as a different date within that period of time. Therefore, since it is common ground that the representative of The Green Effort requested access to the contested decision on 19 September 2017, that he downloaded it and became aware of it on that same day, the General Court did not err in law in deciding that the time limit for bringing an action against the contested decision expired on 29 November 2017.
IPPT20190410, CJEU, The Green Effort v EUIPO
