The Court of Justice of the European Communities issued its decision today in Case C‑144/07 P, K-Swiss Inc. v Office for Harmonisation in the Internal Market. This appeal turned on the status of a courier delivery of a notice by DHL. The Court ruled as follows (the main bits being in bold):

"19 Rule 61 of Regulation No 2868/95, headed ‘General provisions on notifications’, gives an exhaustive list of the means by which OHIM is to notify, inter alia, its decisions. Thus, paragraph 2 of that rule states that notifications are to be made by post, by hand delivery, by deposit in a post box at OHIM, by telecopier or other technical means or by public notification.

20 In addition, where notification is by post, Rule 62(1) of that regulation provides that decisions subject to a time-limit for appeal, such as the disputed decision, are to be notified by registered letter with advice of delivery.

21 In paragraph 22 of the order under appeal, the Court of First Instance noted that the parties did not claim that the express DHL delivery to the appellant had been sent in the form of a registered letter or that DHL was able to send registered letters in Germany, and that the covering letter attached to that delivery did not indicate that it was a registered letter, but stated that that delivery was ‘[n]otified by DHL only’.

22 Consequently, the Court of First Instance rightly concluded that such notification did not constitute notification ‘by registered letter with advice of delivery’ within the meaning of Rule 62(1) of Regulation No 2868/95.

23 However, contrary to OHIM’s contention, where OHIM is unable to prove that a document has been duly notified, or if provisions relating to its notification have not been observed, but that document has reached the addressee, it follows from Rule 68 of Regulation No 2868/95, which the Court of First Instance was right to apply, that OHIM may produce proof of the date of receipt and that the document is deemed to have been notified on that date.

24 Thus, the Court of First Instance correctly held that the action brought by K-Swiss on 16 January 2006 was out of time and should be dismissed as inadmissible.

25 After observing, in paragraph 27 of the order under appeal, that it was common ground that the appellant had received the express DHL delivery on 28 October 2005, the Court of First Instance held, in paragraph 29 of that order, that, having regard to the provisions of its Rules of Procedure and Article 63(5) of Regulation No 40/94, the period within which proceedings against the disputed decision had to be brought had expired on 9 January 2006.

26 It follows from all the foregoing considerations that the appeal must be dismissed as unfounded".