Judgment — ECLI:EU:T:2003:68
Date: 2003-03-12
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Trade marks;Intellectual, industrial and commercial property
Concepts: Rights of the defence and procedural guarantees;Rights of the defence;Other questions of substantive law
Procedure: Action for annulment - successful
Origin: Provisional data;Philippines

Summary of the Judgment 
1. Community trade mark — Third-party observations and opposition — Examination 
of the opposition — Proof of use of the earlier mark — Genuine use — Definition 
(Council Regulation No 40/94, Art. 43(2)) 
II - 789 
SUMMARY — CASE T-174/01 
2. Community trade mark — Decisions of the Office — Observance of the rights of the 
defence 
(Council Regulation No 40/94, Art. 73) 
1. The condition of genuine use of the 
earlier Community mark within the 
meaning of Article 43(2) of Regulation 
No 40/94 of 20 December 1993 on the 
Community trade mark requires that 
the mark, as protected on the relevant 
territory, be used publicly and out­
wardly for the purpose of ensuring an 
outlet for the goods or services which it 
represents. 
(see para. 39) 
2. Under the second sentence of Article 73 
of Regulation No 40/94 on the Com­
munity trade mark, a decision of the 
Office for Harmonisation in the Inter­
nal Market (Trade Marks and Designs) 
can be based only on facts on which the 
parties concerned have had an oppor­
tunity to present their comments. Pro­
cedural equity and the general principle 
of the protection of legitimate expec­
tations require that that provision be 
interpreted as meaning that the Board 
of Appeal is obliged to indicate at the 
outset to the party concerned that it 
intends to take into account a fact 
which was not taken into account in 
the decision of the Opposition Division 
because it was relied on by the other 
party in the opposition proceedings 
after expiry of the time-limit which it 
had been set it for that purpose, in 
order that the party concerned be in a 
position to evaluate the usefulness, if 
any, of submitting substantive obser­
vations on that fact. That obligation is 
to be respected even if the other party 
relies on that fact for a second time in 
the observations which it has lodged 
with the Board of Appeal. 
(see paras 46, 48-51) 
II - 790