Case C-325/03 P

José Luis Zuazaga Meabe

v

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

(Appeal – Community trade mark – Action for annulment – Inadmissibility because out of time – Appeal manifestly unfounded)

Order of the Court (Fourth Chamber), 18 January 2005

Summary of the Order

1. Procedure – Time-limits for bringing an action – Proceedings instituted by facsimile – Time-limit for lodging the signed original – Starting-point – Date of receipt of the fax and not date of expiry of the time-limit for instituting proceedings

(Rules of Procedure of the Court of First Instance, Arts 43(6) and 102(2); Council Regulation No 40/94, Art. 63(5))

2. Procedure – Time-limits for bringing an action – Lapse of rights – Force majeure – Concept – Limits – Specific case

(Statute of the Court of Justice, Art. 45)

1. It follows from the wording of Article 43(6) of the Rules of Procedure of the Court of First Instance that the date on which a copy of the signed original of a pleading is received at the Registry of the Court of First Instance by fax is taken into consideration, for the purposes of compliance with the procedural time-limits, only if the signed original of the pleading is lodged at the Registry no later than 10 days thereafter.

Accordingly, with regard to an action brought against the decision of a Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs), that time-limit of 10 days begins to run from the date receipt of the fax and not the date of expiry of the period of two months and ten days arising from the provisions of Article 63(5) of Regulation No 40/94 on the Community trade mark, in conjunction with Article 102(2) of the Rules of Procedure of the Court of First Instance. In particular, where the fax is received more than 10 days before the expiry of the time-limit fixed for bringing an action before the Court of First Instance, the provisions of Article 43(6) of the Rules of Procedure of the Court of First Instance do not extend that time-limit.

(see paras 17-18)

2. The concept of ‘force majeure’, within the meaning of Article 45 of the Statute of the Court of Justice on time-limits for bringing an action, contains both an objective element relating to abnormal circumstances unconnected with the person in question and a subjective element involving the obligation, on that person’s part, to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices. In particular, the person concerned must pay close attention to the course of the procedure set in motion and, in particular, demonstrate diligence in order to comply with the prescribed time-limits. Thus, the concept of force majeure does not apply to a situation in which, objectively, a diligent and prudent person would have been able to take the necessary steps before the expiry of the period prescribed for instituting proceedings.

Such is the case where an applicant increased the likelihood that his application would arrive out of time at the Community Court by having allowed a number of days to elapse after sending a copy of the signed original of the application by fax before entrusting that original, not directly to the postal service, but to an intermediary undertaking, which itself waited some days before sending that document by registered letter to the Registry of that Court.

(see paras 25-26)

ORDER OF THE COURT (Fourth Chamber) 18 January 2005 (1)

(Appeal – Community trade mark – Action for annulment – Inadmissibility because out of time – Appeal manifestly unfounded)

In Case C-325/03 P, APPEAL pursuant to Article 56 of the Statute of the Court of Justice brought on 21 July 2003,

appellant,

the other parties to the proceedings being:

defendant at first instance,

party to the proceedings before the Board of Appeal of OHIM,

intervener on appeal,

THE COURT (Fourth Chamber),

composed of K. Lenaerts, President of the Chamber, J.N. Cunha Rodrigues and M. Ilešič (Rapporteur), Judges,

Advocate General: M. Poiares Maduro,

after hearing the Advocate General,

makes the following

On those grounds, the Court (Fourth Chamber) hereby orders:

[Signatures]