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Appealing an OHIM decision? Check out the new General Court procedural rules

From Clara Cabecerans (Baker & McKenzie Barcelona) comes some very good news for anyone appealing an OHIM Board of Appeal Community trade mark or design decision to the General Court of the European Union. Clara reports:

The General Court of the European Union adopted new Rules of Procedure which came into force on 1 July 2015. The New Rules replace the 1991 Rules of Procedure.

The court’s rules have been essentially simplified in order to speed up its procedure and to improve its efficiency. Additionally, some new rules have been enacted to regulate matters where no regulation existed before, such as confidentiality of the information and material produced before the Court and the creation of a Vice-President who will assist the President and take the President’s place when the latter is unable to act.

With regard to intellectual property matters the following changes should be particularly noted:

* Delegation to a single Judge: IP cases will be heard and determined by the Judge-Rapporteur sitting as a single judge where the questions of law or fact to be heard are essentially straightforward or the case is considered of limited importance. No doubt, this is one of the main changes in the New Rules.

* A simpler procedure to determine the language of the case: the applicant will be able to choose the language, which will be the language of the case if no objection is received in due course. In case of an objection, the language of the proceedings will be the language of the decision of the OHIM Board of Appeal that is being contested before the General Court. This appears to be a significant improvement with respect to the previous system.

* Rules on replacement of a party and submission of a cross-claim are now regulated: where an IP right affected by the proceedings has been transferred to a third party, that third party may apply to the General Court to step into the shoes of the original party. Further, Chapter 3 regulates the content, time-limit and response to a cross-claim.

* Written part of the procedure: the written part of the procedure will be closed after the submission of the response of the defendant and intervener or after the last response to a cross-claim, if applicable. This means that, contrary to the 1991 Rules, only one single round of pleadings will be allowed.

* Restriction on the length of pleadings: the New Rules specifically establish that the Court will set the maximum length of the written pleadings. A maximum length was already provided for in the Practice Directions. However, such provision has now been established in the New Rules and its importance thus appears to have been reinforced.

Even if not specifically provided for in the Title of the New Rules devoted to Intellectual Property  matters, the following changes should also be taken into account:

*  Shorter legal time-limits for the submission of applications to intervene and requests for hearing: an application to intervene may no longer be submitted before the decision to open the oral part of the procedure. Now, the application may only be submitted within six weeks of the publication of the notice of the action in the Official Journal of the European Union. As with hearing requests, the time limit is now three weeks (instead of 1 month) from the notification to the parties of the closure of the written part of the procedure.

* Oral hearing: the General Court can now rule without a hearing if none of the main parties has requested a hearing and if it considers that it has sufficient information available from the material in the file.

* Transitional period: some provisions of the 1991 Rules still apply to proceedings brought before the entry into force of the New Rules. By way of example, the provisions regarding the application to intervene (Articles 115(1) and 116(6)); the language of the procedure (Article 131); and the second round of pleadings (Article 135(2)) will continue to apply to actions brought before the General Court before 1 July 2015. Likewise, Article 135(a)), which relates to the oral hearings in IP cases, will continue to apply to actions pending before the General Court in which the written part of the procedure was closed before 1 July 2015.

All in all, we see a good number of changes, most of them welcome, which should help streamline litigation in IP matters before the General Court.

Posted by: Blog Administrator @ 11.19
Tags: General Court, rules of procedure,
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MARQUES does not guarantee the accuracy of the information in this blog. The views are those of the individual contributors and do not necessarily reflect those of MARQUES. Seek professional advice before action on any information included here.

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