EU court dismisses TM appeal based on missed deadline

The EU General Court has dismissed a trademark appeal from a computer retailer in Bulgaria on the ground of late filing.

In a judgment today, January 15, the court said a company must file a notice of appeal in writing within two months of its trademark application being refused.

In October 2015, Computer Market filed an application with the European Union Intellectual Property Office to register the signage for Computer Market as a trademark.

The proposed trademark bore the words ‘Computer Market’ in a bold, black font, with the ‘o’ in ‘Computer’ replaced with a round ‘power’ or ‘on’ sign typically seen on computers and remote controls.

In April 2016, the EUIPO refused the application on the ground that the mark was devoid of any distinctive character.

Computer Market appealed against the decision in October 2016. In December that year, the Second Board of Appeal of the EUIPO said the appeal was inadmissible.

The board said Computer Market received the EUIPO’s decision to refuse the trademark on May 28, 2016. This meant that the two-month time limit for filing an appeal expired on July 28, 2016.

It added that, on October 6, Computer Market submitted a communication titled “Notice of Appeal” which was dated July 26, to which the notice of appeal was attached. The board said this communication was in “draft” status and bore a “draft” watermark, which implied it had not been submitted to the EUIPO.

In addition, the Board of Appeal said it had carried out a detailed investigation and found the EUIPO had not recorded any trace of this communication.

In its judgment today, the General Court ruled that the communication submitted by Computer Market could not “prove that the notice of appeal had been submitted as claimed by Computer Market”.

It said that the communication Computer Market had submitted as evidence was marked “draft”, which indicates that it was not submitted to the EUIPO.

The court also said that in August 2016, the EUIPO informed Computer Market that it had received a payment from the company on July 28, 2016, without being able to determine its purpose. The court said this confirmed that the notice of appeal had not reached the EUIPO on July 26, 2016.

The court concluded that “in absence of any evidence to the contrary’, Computer Market’s appeal must be rejected as inadmissible. It concluded that Computer Market had not sent a notice of appeal by July 26, 2016.

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