Judgment — ECLI:EU:T:2018:858
Date: 2018-11-29
Language of the case: English
Court formation: Third Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded

Judgment of the General Court (Third Chamber) of 29 November 2018 – Khadi and Village Industries Commission v EUIPO — BNP Best Natural Products (Khadi) (Case T‑681/17) (EU trade mark — Invalidity proceedings — EU word mark ‘Khadi’ — Production of evidence for the first time before the Board of Appeal — Discretion of the Board of Appeal — Article 76(2) of Regulation (EC) No 207/2009 (now Article 95(2) of Regulation (EU) 2017/1001) — Absolute grounds for refusal — Mark of such a nature as to deceive the public — Article 7(1)(g) of Regulation No 207/2009 (now Article 7(1)(g) of Regulation 2017/1001) — Mark containing badges, emblems or escutcheons — Article 7(1)(i) of Regulation No 207/2009 (now Article 7(1)(i) of Regulation 2017/1001) — No bad faith — Article 52(1)(b) of Regulation No 207/2009 (now Article 59(1)(b) of Regulation 2017/1001)) 1. EU trade mark — Procedural provisions — Examination of the facts of EUIPO’s own motion — Invalidity proceedings concerning absolute grounds for refusal — Examination restricted to the submissions of the parties (Council Regulation No 207/2009, Arts 7(1), 52, 55 and 76(1)) (see paras 12, 13) 2. EU trade mark — Appeals procedure — Action brought against a decision by the Cancellation Division of EUIPO — Examination by the Board of Appeal — Scope — Evidence submitted for the first time before the Board of Appeal — Account taken — Discretion of the Board of Appeal (Council Regulation No 207/2009, Arts 64(1) and 76(2); Commission Regulation No 2868/95, Art. 1, Rule 50(1), third para.) (see paras 19-21) 3. EU trade mark — Appeals procedure — Action brought against a decision by the Cancellation Division of EUIPO — Examination by the Board of Appeal — Scope — Application by analogy of Rule 50(1) of Regulation No 2868/95 in the context of invalidity proceedings based on absolute grounds of refusal — Not permissible (Council Regulation No 207/2009, Arts 7, 52(1) and 76(2); Commission Regulation No 2868/95, Art. 1, Rule 50(1), third para.) (see para. 23) 4. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Trade marks likely to deceive the public — Criteria for assessment (Council Regulation No 207/2009, Art. 7(1)(g)) (see paras 44-46) 5. EU trade mark — Surrender, revocation and invalidity — Absolute grounds for invalidity — Registration contrary to Article 7(1)(g) of Regulation No 207/2009 — Word mark Khadi (Council Regulation No 207/2009, Arts 7(1)(g) and 52(1)(a)) (see paras 48, 53, 54) 6. EU trade mark — Appeals procedure — Appeal brought against a decision of a unit of the Office ruling at first instance and referred to the Board of Appeal — Functional continuity between those two bodies — Examination of the appeal by the Board of Appeal — Scope (Council Regulation No 207/2009, Art. 64(1)) (see para. 58) 7. EU trade mark — Surrender, revocation and invalidity — Absolute grounds for invalidity — Registration contrary to Article 7(1)(i) of Regulation No 207/2009 — Word mark Khadi (Council Regulation No 207/2009, Arts 7(1)(i) and 52(1)(a)) (see paras 60, 61) 8. EU trade mark — Surrender, revocation and invalidity — Absolute grounds for invalidity — Applicant in bad faith when lodging the trade mark application — Criteria for assessment — Taking into account of all relevant factors at the time of filing the application for registration — Applicant’s knowledge that a third party is using an identical or similar sign — Intention of the applicant — Degree of legal protection of the signs at issue — Commercial logic underlying the registration of the contested sign as an EU trade mark — Chronology of events characterising the filing of the trade mark application (Council Regulation No 207/2009, Art. 52(1)(b)) (see paras 68-72) 9. EU trade mark — Surrender, revocation and invalidity — Absolute grounds for invalidity — Applicant in bad faith when lodging the trade mark application — Word mark Khadi (Council Regulation No 207/2009, Art. 52(1)(b)) (see para. 79) 10. EU trade mark — Appeals procedure — Action before the EU judicature — Power of the General Court to alter the contested decision — Limits (Council Regulation No 207/2009, Art. 65(2) and (3)) (see para. 81) Re: Action brought against the decision of the Fifth Board of Appeal of EUIPO of 30 June 2017 (Case R 2083/2016-5) relating to invalidity proceedings between Khadi and Villages Industries Commission and BNP Best Natural Products. Operative part The Court: 1. Dismisses the action; 2. Orders Khadi and Village Industries Commission to pay the costs.