Judgment of the General Court (Fifth Chamber) of 17 March 2011 – Jiménez Sarmiento v OHIM – Oxygène sport international (Q)

(Case T-455/09)

Community trade mark – Opposition proceedings – Calculation of the time-limit for submitting a pleading setting out the grounds of the action before the Board of Appeal – Rule 70 of Regulation (EC) No 2868/95 – Previous practice of OHIM – Concept of excusable error

Community trade mark – Procedural provisions – Time-limits – Calculation of time-limits (Commission Regulation No 2868/95, Art. 1, Rule 70(2) and (4)) (see paras 29-31)

Re:

ACTION for annulment brought against the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 4 September 2009 (Case R 312/2009-4) rejecting the appeal of Mr Vicente J. Jiménez Sarmiento as inadmissible in the opposition proceedings between the latter and Messrs Michel Robin, D. Falzone and M. Monseur.

Information relating to the case

Applicants for the Community trade mark:	Messrs Michel Robin, Daniel Falzone et Maxime Monseur
Community trade mark sought:	Figurative mark consisting of the letter Q angled and with the lower part in bold for goods in Classes 18, 25 and 28 – Registration No 4804266
Proprietor of the mark or sign cited in the opposition proceedings:	Vicente J. Jiménez Sarmiento
Mark or sign cited in opposition:	Spanish figurative mark containing the word element quadrata (No 1770312) for goods in Class 25
Decision of the Opposition Division:	Opposition dismissed as inadmissible
Decision of the Board of Appeal:	Appeal dismissed as inadmissible

Operative part

The Court:

1.

Dismisses the action;

2.

Orders Vicente J. Jiménez Sarmiento to bear his own costs and to pay those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM);

3.

Orders Oxygène sport international to bear its own costs.