# C_2017086EN.01000701.xml

| 20.3.2017 | EN | Official Journal of the European Union | C 86/7 |
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20.3.2017

EN

Official Journal of the European Union

C 86/7

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Appeal brought on 7 December 2016 by European Union Intellectual Property Office against the judgment of the General Court (Sixth Chamber) delivered on 28 September 2016 in Case T-476/15: European Food SA v European Union Intellectual Property Office

(Case C-634/16 P)

(2017/C 086/09)

Language of the case: English

Parties

Parties

Appellant: European Union Intellectual Property Office (represented by: M. Rajh, Agent)

Appellant:

Other parties to the proceedings: European Food SA, Société des produits Nestlé SA

Other parties to the proceedings:

Form of order sought

Form of order sought

The appellant claims that the Court should:

| — | Annul the contested Judgment |
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Annul the contested Judgment

| — | Order European Food to pay the costs incurred by the Office. |
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Order European Food to pay the costs incurred by the Office.

Pleas in law and main arguments

Pleas in law and main arguments

First, the General Court disregarded that Regulations No 207/2009 (1) and No 2868/95 (2) provide for two types of time-limit for submissions in proceedings before the Office: those specified in the legislation itself and which can thus not be extended by the Office, and those to be set by the Office in each individual case for the proper organization of the proceedings and which can, where appropriate according to the specific circumstances of the case, be extended on the parties’ request. The General Court’s statement that there is no time-limit applicable to invalidity proceedings based on absolute grounds is therefore erroneous.

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Second, the General Court misconceived the meaning and effect of Article 76(2) of Regulation 207/2009. This article applies to all types of proceedings before the Office and to all applicable time-limits, namely (i) to those set directly by Regulations No 207/2009 and No 2868/95 and (ii) to those set up by EUIPO in the exercise of its competence to organize the procedures before it.

Third, by concentrating on the third subparagraph of Rule 50(1) of Regulation No 2868/95, the General Court disregarded the core significance of that rule which lies in its first subparagraph, namely that the Board of Appeal is subject to the same procedural provisions as the division that issued the decision under appeal. The first subparagraph is not confined to opposition proceedings but applies to all proceedings, including cancellation proceedings.

Fourth, the Judgment under Appeal infringed Article 76(2) of Regulation No 207/2009 in that it (i) failed to apply this provision to the time-limits set by the Office and (ii) deprived the Board of Appeal of its power under Article 76(2) of Regulation No 207/2009 to assess whether the evidence submitted for the first time qualified as being ‘new’ and, failing this, to exercise its discretion as to the admissibility of that evidence.

Finally, the Contested Judgment disrupts the balance between the parties’ respective procedural rights by giving any party in invalidity proceedings an unconditional right to submit any evidence at any stage of proceedings before the Office, including on appeal. This deprives the defendant of one step of administrative examination where the cancellation applicant deliberately chooses not to submit any — or any relevant — fact or evidence before the Cancellation Division. Moreover, by giving any party in invalidity proceedings an unconditional right to submit any evidence at any stage of proceedings is also in breach of the principles of procedural economy and sound administration.

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(1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark OJ 2009, L 78, p. 1

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(2)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark OJ 1995, L 303, P. 1

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