Judgment — ECLI:EU:T:2011:574
Date: 2011-10-06
Language of the case: English
Court formation: Eighth Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded

summary in paragraph 41 of the application, its argument was concerned only with the procedural error alleging that the applicant had been denied the first tier of review by the Opposition Division. 57 Thus, it is not apparent that the argument expounded by the applicant at the hearing amplifies a plea put forward previously in the application, whether directly or by implication, and is closely connected therewith. Consequently, it must be dismissed as inadmissible. 58 Concerning the plea as put forward in the application, the applicant submits that the Board of Appeal should have remitted the case to the Opposition Division, which had never reached any finding on the application of Article 8(4) and (5) of Regulation No 40/94, as it had previously allowed the opposition on the basis of Article 8(1)(b) of Regulation No 40/94. To say that there is a continuity of functions between the Opposition Division and the Board of Appeal, in reliance on Article 62(1) of Regulation No 40/94, is not a satisfactory response to the plain infringement of an essential procedural requirement under Article 63(2) of Regulation No 40/94. 59 Under Article 62(1) of Regulation No 40/94, following the examination as to the allowability of the appeal, the Board of Appeal is to decide on the appeal. The Board of Appeal may either exercise any power within the competence of the department which was responsible for the decision appealed or remit the case to that department for further prosecution. It follows from that provision that, through the effect of the appeal brought before it, the Board of Appeal is called upon to carry out a new, full examination of the merits of the opposition, in terms of both law and fact (see Case T‑215/03 SIGLA v OHIM – Elleni Holding (VIPS) [2007] ECR II‑711, paragraph 96). 60 Where the Board of Appeal considers that one of the relative grounds for refusal put forward by the opposing party in his opposition and upheld by the Opposition Division in its decision is not well founded, the new, full examination of the merits of the opposition referred to in the previous paragraph necessarily entails an examination by the Board of Appeal, before annulling the Opposition Division’s decision, of whether it may be possible to uphold the opposition on the basis of another relative ground for refusal which was put forward by the opposing party before the Opposition Division but was not examined by it (see, to that effect, VIPS, cited above in paragraph 59, paragraph 97). 61 Therefore, in deciding, in paragraphs 40 to 43 of the contested decision, on the complaints raised as regards Article 8(4) and (5) of Regulation No 40/94, instead of remitting the case to the Opposition Division, the Board of Appeal did not err in law. 62 The plea alleging a procedural error must therefore be considered unfounded. 63 It follows from all the foregoing that the action must be dismissed. Costs 64 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by OHIM. On those grounds, THE GENERAL COURT (Eighth Chamber) hereby: 1. Dismisses the action; 2. Orders Galileo International Technology, LLC to pay the costs. Truchot Martins Ribeiro Kanninen Delivered in open court in Luxembourg on 6 October 2011. [Signatures] ** Language of the case: English.