The matter at hand

The OHIM registered a trade mark upon application for registration by Enercon. Gamesa filed an application for a declaration of invalidity of the mark. After being unsuccessful in the OHIM proceedings, Gamesa applied before the General Court. Although that application was served on it, Enercon did not submit a response, but merely sent the General Court the power of attorney given to its lawyer and a letter accepting the language of the case. After the General Court annulled the decision of the Board of Appeal, Enercon filed an appeal before the ECJ.

Article 56 of the StatuteProtocol [No 3] on the Statute of the Court of Justice of the European Union of the Court of Justice stipulates that “an appeal may be brought by any party which has been unsuccessful, in whole or in part, in its submissions”

The judgment of the ECJ

The ECJ first of all considers that “it follows from the wording of Article 134(1) of the Rules of Procedure of the General Court that, in order to be considered an intervener before the General Court, a party to the proceedings before the Board of Appeal of OHIM other than the applicant before the General Court must have responded to the application in the manner and within the period prescribed” (paragraph 22). Given the very limited procedural participation of Enercon before the General Court, the ECJ concludes that “it must […] be held that Enercon did not participate in the proceedings before the General Court […], particularly since it neither proposed its own form of order nor stated that it was supporting the form of order sought by either of the other parties. Accordingly, it was not an intervener in the proceedings before the General Court and cannot, therefore, bring an appeal against the judgment of the General Court” (paragraph 25).