In K-Swiss v OHIM  EUECJ C-144/07 (2 October 2008) the ECJ dismissed an appeal against the CFI’s refusal to entertain an application to set aside a Board of Appeal decision on th ground that the proceedings had been filed out of time.
Art 63 (5) of the CTM regulation actions against decisions of the Boards of Appeal must be brought within 2 months of notification. Rule 61 (2) of the implementing regulation requires notifications to be made by the following means:
“(a) by post in accordance with Rule 62;
(b) by hand delivery in accordance with Rule 63;
(c) by deposit in a post box at [OHIM] in accordance with Rule 64;
(d) by telecopier and other technical means in accordance with Rule 65;
(e) by public notification in accordance with Rule 66.’
Notification of the Board’s decision was made by DHL courier rather than by post but there was evidence that the decision had been communicated to the applicant by 28 Oct 2005. Proceedings were not instituted until 15 Jan 2006. The applicant appears to have argued that it had never been properly notified. Oh well, we have all had to argue points like this one and sometimes they neven work.
Not in this case though. Both the CFI and ECJ held that although the applicant had not been properly notified of the decision it certainly knew about it. While there is nothing in the judgment to indicate that that was the case, the chronology suggests that the application may have been overlooked in the run up to the Christmas holidays. The moral of this sad tale is just get on with the application even if it means missing out on some pre-Christmas cheer. What would the author of A Christmas Carol and A Poor Man’s Tale of a Patent have made of this case “Humbug” I shouldn’t wonder.
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