JUDGMENT OF THE GENERAL COURT (Sixth Chamber)

6 December 2016 (*)

(EU trade mark — Opposition proceedings — Application for an EU word mark GO SPORT — Earlier national word marks GO — Partial refusal of registration by the Opposition Division — Late filing of the statement of grounds of appeal — Inadmissibility of the appeal brought before the Board of Appeal — Article 60 of Regulation (EC) No 207/2009 — Rule 49(1) of Regulation (EC) No 2868/95)

In Case T‑703/15,

Groupe Go Sport, established in Sassenage (France), represented by G. Arbant and E. Henry-Mayer, lawyers,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by D. Gája, acting as Agent,

defendant,

the other party to the proceedings before the Board of Appeal of EUIPO being

Design Go Ltd, established in London (United Kingdom),

ACTION brought against the decision of the Second Board of Appeal of EUIPO of 22 September 2015 (Case R 569/2015‑2), relating to opposition proceedings between Design Go and Groupe Go Sport,

THE GENERAL COURT (Sixth Chamber),

composed of G. Berardis, President, S. Papasavvas and O. Spineanu-Matei (Rapporteur), Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Court Registry on 30 November 2015,

having regard to the response lodged at the Court Registry on 18 January 2016,

having regard to the change in the composition of the Chambers of the General Court,

having regard to the fact that no request for a hearing was submitted by the main 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

1        On 1 June 2006, the applicant, Groupe Go Sport, filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (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).

2        Registration as a mark was sought for the word sign GO SPORT.

3        The goods and services in respect of which registration was sought are in Classes 9, 12, 18, 22, 25, 28 and 35 of 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.

4        The EU trade mark application was published in Community Trade Marks Bulletin No 28/2007 of 25 June 2007.

5        On 19 September 2007, Design Go Ltd filed a notice of opposition, pursuant to Article 41 of Regulation No 207/2009, to registration of the mark applied for in respect of all the goods and services referred to in the application for registration.

6        The opposition was based on the following earlier United Kingdom word marks:

–        the word mark GO, filed on 19 May 1989 and registered on 10 July 1992, under number 1384841, for goods in Class 9;

–        the word mark GO, filed on 19 May 1989 and registered on 17 July 1992, under number 1384842, for goods in Class 18;

–        the word mark GO, filed on 19 May 1989 and registered on 24 July 1992, under number 1384843, for goods in Class 25;

–        the word mark GO, filed on 4 April 1998 and registered on 12 November 1999, under number 2163188, for goods in Classes 5, 9, 11, 14, 20 and 21.

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

8        Following a request from the applicant, Design Go submitted documents intended to prove genuine use of the earlier marks.

9        On 20 January 2015, the Opposition Division partially upheld the opposition. The decision of the Opposition Division was notified to the parties on that same date.

10      On 20 March 2015, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 58 to 64 of Regulation No 207/2009, against the decision of the Opposition Division. In order to lodge the appeal, the applicant used the electronic communication system provided for in Decision No EX-13-2 of the President of EUIPO of 26 November 2013 concerning electronic communication with and by EUIPO (‘the electronic communication system’).

11      On 19 May 2015, the applicant sent two electronic communications to EUIPO relating to the filing of the statement setting out the grounds of appeal.

12      On 26 May 2015, EUIPO sent the applicant a letter informing it that its appeal was likely to be declared inadmissible because no statement of grounds of appeal had been filed, as only two cover sheets dated 19 May 2015, with no attachments, had been filed. EUIPO requested the applicant to submit its observations in that regard and to provide the Board of Appeal with any supporting evidence within one month of the date of receipt of that letter.

13      In early June 2015, the applicant submitted an incident report to EUIPO’s IT department under ticket number 296909.

14      On 18 June 2015, the applicant submitted its observations in response to the letter of EUIPO of 26 May 2015 and attached a copy of a statement of grounds of appeal as well as English translations of two EUIPO decisions.

15      By decision of 22 September 2015 (‘the contested decision’), the Second Board of Appeal of EUIPO declared the appeal inadmissible. It stated that, in order to comply with Article 60 of Regulation No 207/2009, a statement of grounds of appeal had to have been filed by 20 May 2015 at the latest. According to the Board of Appeal, however, on 19 May 2015 EUIPO had received only two cover sheets which were not, contrary to what was stated on those sheets, accompanied by a statement of grounds of appeal as an attachment. It noted that EUIPO had indeed received such a statement on 25 June 2015 but it pointed out that that statement could not be taken into account as it had been submitted outside the relevant time limit. Thus, the Board of Appeal found that it was unable to conclude that a statement of grounds of appeal had been, or should be considered to have been, received within the set time limit and that EUIPO did not have any solid and objective evidence that the applicant had sent it any attachments with its communications of 19 May 2015. The Board of Appeal concluded that the applicant had failed to comply with Article 60 of Regulation No 207/2009.

 Forms of order sought

16      The applicant claims that the Court should:

–        annul the contested decision;

–        declare the appeal before the Board of Appeal to be admissible;

–        refer the case back to the Board of Appeal;

–        order EUIPO to pay the costs.

17      EUIPO contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

18      In support of the action the applicant relies on a single plea in law alleging infringement of Article 60 of Regulation No 207/2009 and of Rule 49(1) 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), as amended.

19      The applicant claims, in essence, that its statement of grounds of appeal was sent to EUIPO within the set time limit, on 19 May 2015, by means of the electronic communication system, and that if EUIPO had failed to receive that statement of grounds it was due to a technical failure in that system. In any event, the applicant maintains that it also included a copy of that statement of grounds in its communication of 18 June 2015 and that it therefore rectified the situation by filing the statement before 26 June 2015.

20      EUIPO contests the applicant’s arguments.

21      The Board of Appeal found, in essence, that EUIPO had not received any statement of grounds of appeal within the set time limit, as required under Article 60 of Regulation No 207/2009, and that it did not have any solid and objective evidence that the applicant had sent it a statement of grounds of appeal as an attachment to the cover sheets received on 19 May 2015. Accordingly, it found that it was unable to conclude that a statement of grounds of appeal had been, or should be considered to have been, received within the set time limit and it declared the action to be inadmissible.

22      Under Article 60 of Regulation No 207/2009, a notice of appeal must be filed in writing with EUIPO within two months of the date of notification of the decision and a written statement setting out the grounds of appeal must be filed within four months of the date of notification of the decision at issue.

23      In accordance with Rule 49(1) of Regulation No 2868/95, if the appeal does not comply with the conditions laid down by Article 59 of Regulation No 40/94 (now Article 60 of Regulation No 207/2009), the Board of Appeal must dismiss it as inadmissible, unless each deficiency has been remedied before the relevant time limit laid down in Article 60 of Regulation No 207/2009 has expired.

24      It must be stated at the outset that the description, in paragraphs 17 to 22 and 26 to 28 of the contested decision, of the procedure for sending documents via the electronic communication system is not disputed by the applicant. In particular, the Board of Appeal stated that, in order to send a communication that included attachments, the applicant would have needed to add attachments to its message by clicking on ‘Browse’ to select the documents to be attached, then choosing the documents from the applicant’s computer by clicking on them and, lastly, transmitting those documents by clicking on ‘Upload’.

25      Furthermore, it should be pointed out that the parties agree on the fact that, since the contested decision was deemed to have been notified on 20 January 2015, a statement of grounds of appeal had to be submitted on or before 20 May 2015, in accordance with Article 60 of Regulation No 207/2009.

26      In addition, it is common ground that, on 19 May 2015, EUIPO received from the applicant two communications which did not include any attachments and, more specifically, did not include a statement of grounds of appeal.

27      Moreover, as EUIPO has observed, it must be held that the applicant acknowledges that EUIPO did not receive any statement of grounds within the set time limit (as the Board of Appeal stated, in essence, in paragraph 14 of the contested decision).

28      Nevertheless, it is still appropriate to consider whether EUIPO ought to have taken the view that it had received a statement of grounds of appeal on 19 May 2015 on the ground that, as submitted by the applicant, the applicant had sent the statement of grounds on that date and the fact that it was not received was attributable to a technical failure in the electronic communication system.

 Evidence which, it is claimed, proves that a statement of grounds of appeal was sent on 19 May 2015

29      The applicant claims to have evidence which proves that a statement of grounds of appeal was sent on 19 May 2015.

30      First, the applicant maintains that on 13 May 2015 it sent an email to its representative approving the statement of grounds of appeal. This fact, it submits, demonstrates that the statement of grounds had been written and was ready to be filed on time, that is to say, before or on 20 May 2015. In addition, it contends that its knowledge of the exact volume of that statement and its decision to file it in two parts, in order to upload two documents of a permissible size, demonstrates that the statement of grounds of appeal was ready to be filed within the time limit and was effectively filed on 19 May 2015.

31      It must be found that, even though that evidence might potentially demonstrate that a statement of grounds of appeal had been prepared, it is not capable of proving that such a statement was sent to EUIPO within the prescribed period.

32      Secondly, the applicant states that the two acknowledgements of receipt which its representative printed after filing a statement of grounds of appeal on 19 May 2015 prove that that statement was sent to EUIPO. In that regard, it must be pointed out that it is not clear from the documents in question that they are indeed acknowledgements of receipt (the applicant also refers to them as cover sheets) or, in any event, that they prove that such a statement was sent.

33      The applicant claims that those two cover sheets, corresponding to the filing of each attachment, contain certain information on the basis of which it was able to conclude that the filing had been completed correctly. However, it must be noted that some of that information was already known to the applicant before 19 May 2015, including the names of the sender and receiver; the trade mark number, of which the applicant had been aware since, at the latest, the registration of the contested mark; and the appeal number, which had been communicated to the applicant in a letter from EUIPO of 20 March 2015. In any event, the applicant fails to demonstrate how that information was capable of proving that a statement of grounds of appeal had been sent on 19 May 2015.

 Evidence which, it is claimed, proves that a technical failure arose in the electronic communication system

34      The applicant is of the opinion that there was an internal technical failure in EUIPO’s electronic communication system whilst the documents were being uploaded, which would explain why no attachments were received by EUIPO on 19 May 2015. In those circumstances, in early June 2015, the applicant states that it decided to submit an incident report to EUIPO’s IT department, which was registered under ticket number 296909, in order to understand the reasons for the refusal to take into account the filing of 19 May 2015 and to remedy the situation.

35      The applicant states that on 18 June 2015 it submitted observations setting out the technical problems which its representative had faced when filing the statement of grounds of appeal and detailing the relevant evidence. The applicant maintains that its representative selected the two attachments on his computer, which can be proven by the fact that an incident report was submitted, and uploaded them. However, it claims that that transmission did not work due to a technical failure, which cannot be proven by the fact that an incident report was submitted. Accordingly, the applicant contends that the Board of Appeal’s assessment that the applicant did not send the attachments is incorrect: if the applicant had not been fully prepared, and if it had not sent the statement of grounds within the time limit and had not encountered a technical failure, it would not have submitted an incident report in order to understand what had happened and it would not have submitted any observations or relevant evidence in that regard.

36      In that respect, first, it must be held that the fact that the applicant submitted an incident report is not, in itself, in the least capable of proving that a technical failure occurred in the electronic communication system.

37      Secondly, it should be noted that the claims regarding the actions of the applicant’s representative at the time of the transmission of 19 May 2015 are based on mere assertions. Thus, even though the applicant maintains that during a phone conversation with EUIPO’s IT department a technician stated that he could confirm the uploading of each attachment, it is important to point out that the applicant has adduced no evidence whatsoever in that regard. Moreover, even if it were established that such a statement could indeed indicate that a step had been taken towards transmission, the fact remains that it would not prove that a statement of grounds of appeal had been sent. As the Board of Appeal stated in paragraph 30 of the contested decision, the incident report ticket confirms only that the documents at issue were not uploaded and that EUIPO did not receive any attachments.

38      Thirdly, it must be stated that the applicant has submitted no other evidence for the purpose of proving that there was a technical failure. The applicant alleges, it is true, that a EUIPO technician stated that technical failures arose regularly and that EUIPO’s IT department had noted that other such failures had arisen that same day. However, the applicant is relying on mere assertions and there is nothing in the documents before the Court to substantiate that statement or the alleged technical failure in the present case.

39      The applicant does admittedly argue, on the basis of research on, and a printed extract from, the website of EUIPO, that other users have also encountered problems when using the electronic communication system. The applicant maintains that those problems demonstrate that the system has some flaws and claims that it should not itself have to bear the consequences of those flaws.

40      The Court does not need to rule on the admissibility of that document, which is contested by EUIPO; it is sufficient to state that that document fails to prove that technical failures arose in the electronic communication system during the applicant’s transmissions of 19 May 2015, particularly since none of the technical problems referred to in that document relates to the uploading of, or failure to upload, attachments.

41      It follows from the foregoing that the applicant has adduced no evidence to support the conclusion that a technical failure arose in the electronic communication system during its two transmissions of 19 May 2015.

42      By contrast, it should be noted, in the first place, that the incident report ticket indicates that no attachments were uploaded by the applicant (see paragraph 37 above). Moreover, as EUIPO states, the technical records of the online activities show that attachments were successfully added to the communications of other clients which were sent immediately before or in between the two communications of the applicant. In those records, the successfully added attachments are indicated in square brackets but those square brackets remain empty in relation to the applicant’s communications. Thus, those factors suggest that there was no technical problem in the electronic communication system during the two transmissions of the applicant on 19 May 2015.

43      In the second place, as EUIPO contends, if, on the cover sheets relating to the communications of the applicant of 19 May 2015, there had been a mention of attachments underneath the message from the applicant, but EUIPO failed to receive any attachments, that would be an indirect indication of a possible technical problem in the electronic communication system. However, in the present case, those cover sheets contain no mention of electronic attachments, as the Board of Appeal stated in paragraph 25 of the contested decision, and the applicant does not challenge this.

44      It follows from the foregoing that, on the basis of such sufficiently precise and consistent evidence, and in the absence of any evidence to the contrary submitted by the applicant, the Board of Appeal was entitled to conclude that the applicant had not uploaded a statement of grounds of appeal as an attachment to its messages on 19 May 2015 and that such a statement could not be considered to have been received. The applicant has adduced no evidence to prove that the fact that EUIPO did not receive that statement was attributable to a technical problem in the electronic communication system.

45      Faced with that evidence, the applicant cannot simply contend before the Court that that conclusion of the Board of Appeal is incorrect. It was incumbent upon the applicant, in order to convince the Court, to provide an explanation or justification which was capable of undermining the likelihood of the alleged fact (see, to that effect, judgment of 15 March 2011, Ifemy’s v OHIM — Dada & Co Kids (Dada & Co. kids), T‑50/09, EU:T:2011:90, paragraph 52 and the case-law cited).

46      Accordingly, as the Board of Appeal rightly found in paragraph 14 of the contested decision, no statement of grounds of appeal was filed within the set time limit.

47      That conclusion cannot be called into question by the other arguments of the applicant.

 Possible differences in comparison with other electronic communication systems

48      According to the applicant, the Board of Appeal, by explaining all stages of the online filing procedure, tried to demonstrate that that procedure is common and easy to follow and that the user cannot be confronted by any unusual difficulties (paragraphs 17 to 28 of the contested decision). The applicant maintains that, even though electronic communication systems are becoming increasingly common, particularly in the offices of Member States, not all online procedures are identical. Unlike the online procedure before the French Trade Mark Office, for example, if a failure occurs during the uploading of an attachment to EUIPO’s electronic communication system, the user can proceed to validate his request without being able to check whether that document has indeed been uploaded correctly since no message appears warning that no attachments have been added.

49      Without its being necessary to rule on its admissibility, it must be held that that line of argument, which is contested by EUIPO, has to be rejected.

50      First, the possible differences between the system of the French Trade Mark Office and that of EUIPO are irrelevant since the system of the European Union is autonomous.

51      Secondly, as already indicated in paragraph 24 above, the applicant does not dispute the description, set out in the contested decision, of the procedure for sending documents via the electronic communication system. In that regard, it must be stated that, as the Board of Appeal rightly pointed out in paragraph 20 of the contested decision, the button ‘Upload’ remains clearly visible and is difficult to miss. Furthermore, the electronic communication system allows the sender to check what he is sending and to visualise it on his screen exactly as EUIPO will receive it.

52      Thirdly, contrary to the submissions made by the applicant, it must be held that, when using the electronic communication system, the fact that there was no mention of there being no attachments was not such as to allow the applicant to take the view that attachments had been added to the message.

53      It should be observed that the applicant already had experience of using the electronic communication system, for example when filing the notice of appeal. It was therefore in a position to know that, when an attachment is uploaded and transferred, that attachment is mentioned underneath the box in which the content of the message appears, as the Board of Appeal stated in paragraph 24 of the contested decision. Likewise, as EUIPO observes, when sending an email, for example, if an attachment has been added to a message, that attachment must be visible both before and after the message has been sent, but no message will appear stating that no attachment has been added.

54      Accordingly, in the present case, in the light of the importance of filing the attachment in question, which should have contained the statement of grounds of appeal, the applicant ought to have been especially mindful of the fact that there was no mention of attachments in the cover sheets relating to its communications of 19 May 2015.

 The filing of a statement of grounds of appeal on 18 June 2015

55      The applicant claims to have rectified the situation, before 26 June 2015, by transmitting the statement of grounds of appeal with its communication of 18 June 2015.

56      That argument cannot be accepted.

57      First, under Rule 49(1) of Regulation No 2868/95, every deficiency pointed out must be remedied before the relevant time limit laid down in Article 60 of Regulation No 207/2009 has expired, that is to say, within four months of the date of notification of the decision at issue.

58      The applicant, however, relies on a transmission that was not made until 18 June 2015, and thus after the four-month period had expired. In that respect, it should be noted that the period of one month given to the applicant by EUIPO on 26 May 2015 was intended to allow the applicant to submit its observations on the fact that no statement of grounds of appeal had been filed within the time limit and to allow the applicant to provide the Board of Appeal with any supporting evidence (see paragraph 12 above); it was not intended to allow the applicant, as the case may be, to resubmit such a statement.

59      Thus, as the Board of Appeal found, in essence, in paragraph 13 of the contested decision, the transmission of a statement of grounds of appeal on 18 June 2015 cannot be regarded as being compliant with the provisions referred to in paragraph 57 above.

60      Secondly, even if the applicant intended, implicitly, to rely on Rule 80(2) of Regulation No 2868/95, it must be held, as EUIPO argues, that EUIPO was not under any obligation to invite the applicant to complete its communications of 19 May 2015.

61      Under Rule 82(2) of Regulation No 2868/95, where a communication is sent by electronic means, Rule 80(2) of that regulation, which is worded as follows, applies mutatis mutandis:

‘Where a communication received by telecopier is incomplete or illegible, or where [EUIPO] has reasonable doubts as to the accuracy of the transmission, [EUIPO] shall inform the sender accordingly and shall invite him, within a period to be specified by [EUIPO], to retransmit the original by telecopy or to submit the original in accordance with Rule 79(a). Where this request is complied with within the period specified, the date of the receipt of the retransmission or of the original shall be deemed to be the date of the receipt of the original communication … Where the request is not complied with within the period specified, the communication shall be deemed not to have been received.’

62      That provision thus governs situations in which an objective factor relating to particular or abnormal technical circumstances, outside the control of the party in question, prevents the latter from communicating documents by fax or electronic means in a satisfactory manner (judgment of 15 March 2011, Dada & Co. kids, T‑50/09, EU:T:2011:90, paragraph 44).

63      It also follows, as is borne out by the use of the word ‘retransmit’, that Rule 80(2) of Regulation No 2868/95 presupposes that the documents whose communication by fax or electronic means was incomplete or illegible are in principle identical to the documents communicated at a later stage as originals or by fax at EUIPO’s request, and it therefore precludes any correction, amendment or addition of new information on that occasion. Any other interpretation would enable the parties to a procedure before EUIPO to circumvent the time limits set for them, which is clearly not the objective pursued by Rule 80(2) of Regulation No 2868/95 (judgment of 15 March 2011, Dada & Co. kids, T‑50/09, EU:T:2011:90, paragraph 46).

64      In the present case, first of all, it must be pointed out that, even though the applicant’s message on the cover sheets of 19 May 2015 refers to a statement of grounds of appeal being sent, it is common ground that no such statement was received, even in part, on 19 May 2015 or within the set time limit (see paragraph 27 above). As EUIPO in essence maintains, the fact that the entire document is missing means that it cannot be regarded as an incomplete communication because only the transmission messages were sent and it is therefore impossible to ascertain that the same document was retransmitted.

65      Next, it must be held that the applicant was not prevented, technically, from transmitting the attachments at issue, since it has not been established that there was any technical failure preventing such a transmission (see paragraph 44 above).

66      Consequently, in the circumstances of the present case, as EUIPO argues, allowing the communication to be regarded as incomplete on the basis of the applicant’s intent, as expressed in the transmission messages on the cover sheets, without taking into account the fact that it was technically able to send the attachment at issue but did not do so, would amount to enabling it to circumvent the time limit for filing a statement of grounds of appeal.

67      Thirdly, as noted by EUIPO, the applicant has not sought restitutio in integrum in order to re-establish its rights pursuant to Article 81 of Regulation No 207/2009. The applicant’s observations of 18 June 2015 cannot be regarded as constituting such a request since they make no reference to Article 81(1) of Regulation No 207/2009 and no fee was paid as required by Article 81(3) of that regulation.

68      In any event, even if the circumstances that led to the statement of grounds of appeal not being sent could be categorised as unforeseeable circumstances or amount to force majeure or excusable error, they would, in any event, have included a subjective element involving the obligation, on the part of the party acting in good faith, to exercise all the care and diligence required of a normally well-informed operator to monitor the course of the procedure set in motion and to comply with the prescribed time limits (see, to that effect, judgment of 21 May 2014, Melt Water v OHIM (NUEVA), T‑61/13, EU:T:2014:265, paragraph 38 and the case-law cited).

69      In the present case, the exercise of such care was particularly important since the applicant transmitted its communications on 19 May 2015, that is to say, the day before the last day of the set time limit.

70      Such care on the part of the applicant was necessary both when transmitting the communications, in order to ensure that the statement of grounds of appeal had been attached, and when carrying out the checks that the applicant claims to have performed. In that regard, the applicant does not specify which checks it carried out on 19 May 2015, after sending the two communications, in order to ensure that the statement of grounds had been filed. Moreover, the applicant claims that, since the time limit for filing the statement of grounds of appeal was 20 May 2015, on that day it carried out a second check, using EUIPO’s online services, so as to satisfy itself that that statement had been correctly filed. Nevertheless, it must be stated that the applicant has adduced no evidence to prove that that second check was performed and that it does not indicate how that check confirmed that that statement had been sent.

 The alleged good faith of the applicant

71      The applicant contests the assessment made by the Board of Appeal which, allegedly without having analysed the applicant’s observations, found that the applicant had failed to adduce any solid and objective evidence that it had sent any attachments to EUIPO on 19 May 2015 (paragraph 14 of the contested decision). The applicant claims that, as soon as it became aware of the failure, it did everything in its power to rectify the issue, which was out of its control, thereby demonstrating its good faith.

72      In this regard, it should be noted that the applicant has provided no evidence that a statement of grounds of appeal was sent (see paragraph 44 above). Furthermore, the alleged good faith of the applicant is irrelevant since it was required to file that document within four months of the date of notification of the contested decision and in the circumstances of the present case EUIPO could not accept that document after that time limit on the basis of the applicant’s good will, when the applicant had not invoked the provisions of Article 81(1) of Regulation No 207/2009.

73      In the light of all of the foregoing, it must be held that, contrary to the applicant’s submissions, the Board of Appeal did analyse the observations of the applicant and that it acted correctly in finding that the applicant had failed to file a statement of grounds of appeal within the time limit set in accordance with Article 60 of Regulation No 207/2009. Consequently, the fact that such a statement was not received by EUIPO before the time limit meant that the appeal was inadmissible by reason of Rule 49(1) of Regulation No 2868/95, as the Board of Appeal correctly found in paragraph 32 of the contested decision.

74      It follows that the single plea in law, alleging infringement of Article 60 of Regulation No 207/2009 and of Rule 49(1) of Regulation No 2868/95, must be rejected as unfounded and that the action must therefore be dismissed in its entirety.

 Costs

75      Under 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 the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by EUIPO.

On those grounds,

THE GENERAL COURT (Sixth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Groupe Go Sport to pay the costs.

Berardis

Papasavvas

Spineanu-Matei

Delivered in open court in Luxembourg on 6 December 2016.

E. Coulon

      G. Berardis

Registrar

      President