Friday, 11 May 2012

T 540/09 – Wrong Name

Nowadays companies merge and change their names all the time, and it can easily happen that an appeal is filed using a wrong name for the appellant. Is this sufficient to make the appeal inadmissible? As a rule, it is not. The present decision confirms this stance.

[1] The opposition was originally filed in the name of SIG Technology AG. During the opposition proceedings the opponent filed further submissions as SIG Combibloc Systems GmbH. In the minutes of the oral proceedings the opponent is identified as SIG Technology Ltd. The opposition division’s decision refers to SIG Technology AG. The notice of appeal was filed in the name of SIG Combibloc Systems GmbH.

In its communication dated 20 May 2009 the Board noted that due to the above-mentioned situation the notice of appeal appeared to contain an inconsistency concerning the name/identity of the appellant (R 101(2) and R 99(1)(a)), which has to be a registered party to the opposition proceedings (A 107) and a legal entity still existing at the filing date of the notice of appeal (T 525/94). The Board noted further that the appellant’s address was missing in the notice of appeal, contrary to the requirements under R 99(1)(a).

Thereupon the Board requested from the appellant to provide explanations, in case it applied evidence concerning its status as a party in the present proceedings, and – insofar as possible – to remedy the deficiencies.

In its reply dated 29 July 2009 the appellant submitted that the mention of SIG Combibloc Systems GmbH as the appellant in the notice of appeal dated 2 March 2009 as well as in the letter stating its grounds of appeal dated 4 May 2009 did not originate from any change as to the status of opponent but resulted from an unjustified modification introduced in its electronic file already during the opposition proceedings. It further indicated (supported by a copy of an extract of the Handelsregister des Kantons Schaffhausen) that SIG Technology AG and SIG Technology Ltd were the two different official names of the same company. It finally mentioned the address of the appellant. It requested to consider the notice of appeal and the statement of grounds of appeal as filed by the registered opponent SIG Technology AG and thus admissible.

On that basis, the Board, concurring with its opinion expressed in its communication dated 1 September 2009, sees no element which would support any intention of the appellant to have the appeal filed in the name of a legal person different from the opponent registered as such at the EPO nor does the Board have any reason to consider any matter related to a possible transfer of the status of opponent. The Board considers the discrepancy between the registered opponent and the mentioned appellant as an error.

The Board further notes that both the notice of appeal and the statement of grounds have been sent by the representative of the opponent in the first instance proceedings, under the same internal references, referring to the same patent, the same patent proprietor and mentioning the correct date of the impugned decision.

Therefore, in line with the case-law established by T 97/98 and the decisions following it, the Board holds that only a mistake occurred in the name indicated and that sufficient elements are provided in order to allow its correction in this sense indicated by the opponent.

As above-mentioned, the appellant also mentioned its address in its reply to the communication, so complying with the requirements of R 99(1)(a).

The respondent questioned at no point in these appeal proceedings the admissibility of the appeal.

Taking the above into consideration the Board finds the appeal admissible.

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To have a look at the file wrapper, click here.