EU court reverses ‘unjustified decision’ over attorney’s illness
The EU Intellectual Property Office’s (EUIPO) board of appeal erred by failing to accept a trademark attorney’s declaration that he missed a deadline due to a severe illness, the third chamber of the EU General Court ruled yesterday, December 16.
In May 2017, Windmöller Flooring Products submitted a trademark application to the EUIPO, for the word sign ‘Canoleum’ for a flooring product, which was published in the EU Trademarks Bulletin in June, 2017.
In September that same year, Forbo Financial Services, the owner of Forbo Flooring, filed an opposition, based on its ownership of the word mark ‘Marmoleum’, which it registered In September 1997 for a linoleum brand.
In February 2019, the EUIPO’s opposition division rejected the opposition on the grounds that there was no likelihood of confusion between the marks. On April 9 2019, the Swiss flooring manufacturer lodged an appeal with EUIPO against the decision.
However, Forbo did not file the statement setting out the grounds for the appeal until June 26, 2019, past the deadline of midnight on June 12, 2019.
The company requested a restitutio in integrum, explaining that the lawyer who was responsible for Forbo’s case during the proceedings before EUIPO was unable to file that brief within the time limit set due to a serious illness. In support of this assertion, Forbo submitted two statutory declarations, one by the lawyer and the other by his wife.
It argued that on June 12, the company’s lawyer asked an employee to prepare the memorandum setting out the grounds for the appeal.
The lawyer then fell ill with food poisoning, which, the company argued, then prevented him from signing that memorandum and sending it to EUIPO. Due to the seriousness of the symptoms which he suffered, he was unable to entrust those tasks to a third party, added Forbo.
Insufficient proof
On October 9, 2019, the Second Board of Appeal of EUIPO declared the application for restitutio in integrum admissible, but dismissed it as unfounded. It considered that the initial lawyer “had not sufficiently proved that he had observed the vigilance required by the circumstances”.
The board held that Forbo’s lawyer had not provided sufficient proof of “his solemn declaration and that of his wife”. It argued that a sudden illness could only represent an unforeseeable cause if it was so serious that it prevented the person from taking the appropriate measures to meet the deadline, such as instructing a colleague.
Second, the board criticised the lawyer for failing to provide sufficient proof that “he had not even had the opportunity to ask his wife to telephone [a colleague] to instruct him to sign and send the memorandum setting out the grounds for the appeal”.
Thirdly, the board held that the lawyer had failed to prove that, on June 12, 2019, no colleague, who could have signed and sent the brief setting out the grounds for the appeal, was present at the law firm.
Fourthly, the board concluded that Forbo had insufficiently proved that the statement setting out the grounds for the appeal was already finalised and validated and that the lawyer’s illness was the definite cause of the company’s failure to meet the deadline.
On appeal, Forbo argued that the board of appeal applied overly strict criteria and that it had rejected “en bloc” the two statutory declarations which it had produced. The board took this action, it argued, “without having made a sufficient overall assessment of their content”.
It also held that the lawyer was unable to present a medical certificate to the EUIPO because he was unfit to see a doctor when he became ill and that he was justified in thinking there was no point in seeing a doctor the next day since his symptoms were already weaker.
EUIPO disputed Forbo's arguments and deemed it “completely inexplicable” that this brief was not filed the next day (June 13), but two weeks after the expiry of the deadline.
Professional conduct and moral standards
The court, however, found that the board failed to recognise that the lawyer “is a legal professional who must exercise his functions in accordance with the rules of professional conduct and moral standards, which in particular forbids him to deliberately mislead the authorities and, in particular, the judge”.
The court stated that a solemn declaration made by a lawyer “was solid proof of the elements ...when it is unequivocal, devoid of contradictions and coherent, and there is no element of fact likely to call into question his sincerity”.
The board also failed to take into account that “additional evidence capable of supporting the content of the two statutory declarations could not reasonably be required or was not available”.
It added that, since in most cases people suffering from this type of illness recover on their own fairly quickly without any treatment, it was unsurprising that the lawyer did not consider it necessary to be examined by a doctor later.
The General Court annulled the decision of the EUIPO's board and ordered it to pay costs.
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