General Court rules on timely payment of appeal fee in opposition proceedings

In Wilmar Trading Pte Ltd v Office for Harmonisation in the Internal Market (OHIM) (Case T-232/12, January 21 2014), the General Court has decided a case concerning the timely payment of the appeal fee in an opposition matter.

Agroekola EOOD filed an application for registration of the word mark ULTRA CHOCO as a Community trademark in Classes 29, 30 and 31 of the Nice Classification. Wilmar Trading Pte Ltd filed an opposition based on the earlier Singaporean word mark ULTRA CHOCO and the unregistered word mark ULTRA CHOCO used in the course of trade in the European Union. The Opposition Division of OHIM rejected the opposition filed by Wilmar on November 10 2011.

On January 10 2012 Wilmar filed a notice of appeal with OHIM. On January 18 2012 the Registry of the Boards of Appeal notified Wilmar that the appeal fee had not been paid within the prescribed period and that the appeal could be deemed never to have been filed. The appeal fee should have been paid on January 10 2012.

On January 20 2012 Wilmar provided the Registry of the Boards of Appeal with a bank transfer showing that the appeal fee had been paid on January 11 2012. OHIM acknowledged the receipt of the documentation from Wilmar on January 27 2012.

The Registry of the Boards of Appeal informed Wilmar on February 23 2012 that the appeal fee had not been paid within the prescribed period and that the appeal had to be deemed not to have been filed. On March 27 2012 the First Board of Appeal upheld this conclusion, referring to the fact that payment must be made within two months of the date of the Opposition Division's decision.

Wilmar appealed to the General Court, claiming (for the first time) that the transfer order was in fact given on January 10 2012, and that OHIM had not examined the proof sent by Wilmar on January 20 2012. Wilmar also claimed that the fact that OHIM had acknowledged receipt on January 27 2012 of the documentation sent by Wilmar had given it legitimate expectations that the bank transfer sent to the Registry of the Boards of Appeal was sufficient proof of timely payment.    

First, the General Court noted that its function is to review the legality of decisions - not to re-evaluate factual circumstances relating to evidence which could have been presented before OHIM. The copy of the transfer order was therefore deemed to be inadmissible evidence. The General Court rejected the argument that OHIM should reasonably have concluded that the transfer order had been given to the bank on January 10 2012, based on the presumption that transfer orders are given to banks at least one day before the execution of the transfer. The General Court pointed out that it is not for OHIM to make presumptions as to the date on which a transfer order was given.

Second, the General Court stated that the acknowledgement given by OHIM on January 27 2012 did not give rise to any legitimate expectation as to the timely payment of the appeal fee - OHIM had merely acknowledged receipt.

The General Court further stated that such acknowledgement did not prevent Wilmar from taking advantage of the remaining time of the fixed period to provide the Registry of the Boards of Appeal with proof of payment. Therefore, Wilmar could have provided the registry with further documentation, after the acknowledgement from OHIM, to show that the payment had been made within the prescribed period.

On these grounds, the General Court decided that the appeal fee had not been paid within the prescribed period.

Kasper Frahm, Plesner, Copenhagen