ORDER OF THE GENERAL COURT (Second Chamber)

15 April 2011 (*)

(Community trade mark – Opposition proceedings – Application for Community word mark VITACHRON FEMALE – Opposition by the proprietor of the Benelux word mark VITATHION – Failure to comply with the obligation to pay the appeal fee within the prescribed period – Decision of the Board of Appeal declaring that the appeal is deemed not to have been filed)

In Case T‑96/11,

Longevity Health Products, Inc., established in Nassau (Bahamas), represented by J. Korab, lawyer,

applicant,

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM),

defendant,

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

Biofarma SA, established in Neuilly-sur-Seine (France),

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 10 January 2011 (Case R 1357/2010-4), relating to opposition proceedings between Biofarma SA and Longevity Health Products, Inc.,

THE GENERAL COURT (Second Chamber),

composed of N.J. Forwood (Rapporteur), President, J. Schwarcz and A. Popescu, Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Registry of the General Court on 16 February 2011,

makes the following

Order

 Background of the dispute

1        On 29 June 2009, the applicant, Longevity Health Products, Inc., filed an application for registration of a Community trade mark with the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

2        The mark for which registration was sought is the word sign VITACHRON FEMALE.

3        The goods in respect of which registration of the trade mark was sought are in Classes 3, 5 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 Community trade mark application was published in Community Trade Marks Bulletin No 2009/032 of 24 August 2009.

5        On 30 September 2009, Biofarma SA filed a notice of opposition under Article 41 of Regulation No 207/2009 against registration of the mark applied for in respect of the goods in Class 5, referred to in paragraph 3 above, and corresponding to the following description: ‘Pharmaceutical preparations, sanitary preparations, dietetic substances adapted for medical use, preparations of trace elements for human consumption, food supplements for medical purposes, mineral food supplements, vitamin preparations’.

6        The opposition was based on the Benelux word mark VITATHION, registered under number 438 983.

7        The ground relied on in support of the opposition was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009.

8        By decision of 21 May 2010, the Opposition Division upheld the opposition in its entirety.

9        On 20 July 2010, pursuant to Articles 58 to 64 of Regulation No 207/2009, the applicant filed a notice of appeal with OHIM against the decision of the Opposition Division.

10      By decision of 10 January 2011 (‘the contested decision’), the Fourth Board of Appeal of OHIM, having established that the appeal fee had not been paid and the applicant had not taken any further action following a request of 2 September 2010 from the Registry of OHIM, informing it of that fact and inviting it to submit its observations within one month, found that the appeal must be deemed not to have been filed, pursuant to Article 60, second sentence, of Regulation No 207/2009 and Rule 49(3) 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). Consequently, the Board of Appeal did not rule on the substance of the appeal.

 Forms of order sought

11      The applicant claims that the Court should:

–        declare the action admissible;

–        annul the contested decision and reject the opposition of Biofarma SA to the registration of the Community trade mark applied for;

–        order OHIM to pay the costs.

 Law

12      Under Article 111 of the Rules of Procedure of the General Court, where it is clear that the Court has no jurisdiction to take cognisance of an action or where the action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, by reasoned order, without taking further steps in the proceedings, give a decision on the action.

13      In the present case, the Court considers that it has sufficient information from the documents in the file and decides, pursuant to that article, to give a decision without taking further steps in the proceedings.

14      In support of its action, the applicant essentially complains that the Board of Appeal refused to rule on the substance of the case and, specifically, on the likelihood of confusion relied on by Biofarma SA in support of its opposition to registration of the trade mark applied for. It maintains that such a likelihood is non-existent in the present case, so that, according to the applicant, the opposition should have been rejected.

15      However, the applicant does not set out any complaint concerning the Board of Appeal’s finding in paragraph 4 of the contested decision or the reasoning contained in paragraphs 5 to 7 of the decision.

16      In that regard, it should be recalled that, pursuant to Article 60 of Regulation No 207/2009, notice of appeal before the Board of Appeal is to be filed in writing at OHIM within two months after the date of notification of the decision of the Opposition Division, and is to be deemed to have been filed only when the appeal fee has been paid.

17      Furthermore, in accordance with Rule 49(3) of Regulation No 2868/95, if the appeal fee has been paid after expiry of the time-limit for the filing of an appeal under Article 60 of Regulation No 207/2009, the appeal before the Board of Appeal is deemed not to have been filed and the appeal fee is to be refunded to the appellant.

18      In the present case, the Board of Appeal noted, in paragraph 4 of the contested decision, that the appeal fee had not been paid, that the Registry of OHIM had informed the applicant of that failure on 2 September 2010 and had invited the applicant to submit its observations within one month, and that no such observations had been received.

19      As already noted, those findings of fact are not called into question in the present action. It must therefore be regarded as undisputed that the appeal fee was not paid before expiry of the time-limit for the filing of an appeal and that the applicant has not relied on any unforeseeable circumstances or force majeure that may, where applicable, justify that failure.

20      In these circumstances, the Board of Appeal properly applied Article 60 of Regulation No 207/2009 and Rule 49(3) of Regulation No 2868/95 when it found, in paragraphs 5 to 7 of the contested decision, that the appeal had to be deemed not to have been filed.

21      Since it had correctly found that the appeal was to be deemed not to have been filed, it was not for the Board of Appeal to rule on the substance of the dispute (see order of 6 October 2008 in Case T-380/07 Kaloudis v OHIM – Fédération française de tennis (RolandGarros SPORTSWEAR), not published in the ECR, paragraph 39).

22      In so far as the applicant complains that the Board of Appeal did not rule on the substance of the case, its action must be rejected as clearly lacking any foundation in law.

23      For the remainder, in so far as the applicant requests the Court to examine the substance of the case itself, its action must be rejected as clearly inadmissible (see, to that effect, RolandGarros SPORTSWEAR, paragraph 40). Under Article 65 of Regulation No 207/2009, the General Court may annul a decision of an OHIM Board of Appeal only on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaty, of that regulation or of any rule of law relating to their application, or misuse of power. This review of legality is to be carried out in the light of the factual and legal context of the dispute as it was brought before the Board of Appeal (see order of 15 November 2006 in Case T‑366/05 Anheuser Busch v OHIM – Budějovický Budvar (BUDWEISER), not published in the ECR, paragraph 27 and the case-law cited). In the present case, since the appeal before the Board of Appeal is deemed not to have been filed, the applicant’s complaints relating to the substance of the case, on which the Board of Appeal was right to refuse to rule, also fall outside the scope of the Court’s judicial review.

24      It follows from all the foregoing considerations that the application must be dismissed as, in part, clearly lacking any foundation in law and, in part, clearly inadmissible, and it is not necessary to serve the application on the defendant.

 Costs

25      Since this order has been made before service of the application on the defendant and before it could have incurred any costs, it is sufficient to order, pursuant to Article 87(1) of the Rules of Procedure, that the applicant must bear its own costs.

On those grounds,

THE GENERAL COURT (Second Chamber)

hereby orders:

1.      The action is dismissed as, in part, manifestly lacking any foundation in law and, in part, manifestly inadmissible.

2.      Longevity Health Products, Inc. shall bear its own costs.

Luxembourg, 15 April 2011.

E. Coulon

      N.J. Forwood
Registrar

President