Opinion of the Advocate General — ECLI:EU:C:2013:312
Date: 2013-05-16
Language of the case: English

Summary of the judgments of the General Court Case T‑62/09 (11) (the subject of the appeal in Case C‑120/12 P) 27. The action against the Board of Appeal’s decision of 15 December 2009 was based on three pleas: (i) infringement by the Opposition Division of Article 8(1)(b) of Regulation No 40/94, (ii) infringement by the Board of Appeal of Article 74(2) of Regulation No 40/94 and misuse of powers and (iii) infringement by the Board of Appeal of Article 8(1)(b) of Regulation No 40/94. 28. On 16 December 2011, the General Court dismissed the action. 29. The General Court rejected, at paragraph 24 of its judgment, the first plea as being inadmissible because it was not directed against a decision of the Board of Appeal. 30. The General Court rejected the second plea as being unfounded. At paragraphs 27 and 28 of its judgment, it first summarised the terms of Rule 19(1) to (3) of the Implementing Regulation and the dates on which Mr Rintisch filed evidence. 31. Next, at paragraphs 29 to 32, the General Court focused on the terms of Article 74(2) of Regulation No 40/94 and the case-law according to which (i) as a general rule, the submission of facts and evidence by the parties remains possible after the expiry of the time-limits to which such submission is subject under the provisions of Regulation No 40/94; (ii) a party has no unconditional right to have facts and evidence submitted out of time taken into consideration by OHIM and (iii) the possibility for parties to proceedings before OHIM to submit facts and evidence after the expiry of the periods specified for that purpose is conditional upon there being no provision to the contrary. 32. After setting out the terms of Rule 20(1) and the first and third subparagraphs of Rule 50(1) of the Implementing Regulation, the General Court then went on to consider whether the latter is a ‘provision to the contrary’ that precludes Rule 20(1) from being applied to proceedings before the Board of Appeal: ‘38 It must be noted at the outset that, since the notice of opposition was filed on 9 March 2007, the version of [the Implementing Regulation] applicable to the present case is that in force after the amendment by Commission Regulation (EC) No 1041/2005 ... In particular, according to recital 7 of that regulation, one of the aims of that amendment was to reframe completely the provisions concerning the opposition procedure in order to specify clearly, inter alia, the legal consequences of procedural deficiencies. 39 In addition to the risk of applying circular reasoning to the provisions in question, accepting the interpretation put forward by the applicant would result in the scope of Rule 20(1) of [the Implementing Regulation], as amended, being limited significantly. 40 If the evidence to establish the existence, validity and scope of an earlier mark – which, in accordance with the new wording of Rule 20(1) of [the Implementing Regulation], applicable to the present case, cannot be taken into account by the Opposition Division when it is filed late – could nevertheless be taken into consideration by the Board of Appeal by virtue of its discretionary power under Article 74(2) of Regulation No 40/94, the legal consequence laid down expressly in Regulation No 1041/2005 for that type of deficiency, namely the rejection of the opposition, might, in certain cases, have no practical effect. 41 It must therefore be held that the Board of Appeal did not err by finding that, in the circumstances of the present case, there was a provision which prevented evidence submitted late to OHIM by the applicant from being taken into account and that, therefore, the Board of Appeal did not have any discretion under Article 74(2) of Regulation No 40/94.’ 33. The General Court then turned to Mr Rintisch’s argument regarding the Board of Appeal’s statement that, in any event, it would have exercised its discretion against him: ‘43 In that regard, even though the Board of Appeal found that the circumstances of the present case prevented the discretion under Article 74(2) of Regulation No 40/94 from being exercised in favour of the applicant in any event, it is clear from paragraph 39 of the contested decision that that finding was made purely in the alternative and in the light of the fact that CORPO livre [(12)] …, on which the Board of Appeal’s reasoning was based, was the subject of an appeal to the Court of Justice. 44 It should be pointed out that in its order in K & L Ruppert Stiftung v OHIM [(13)] … the Court of Justice did not call in question the General Court’s approach in CORPO livre ... In addition, since, in accordance with the conclusion drawn in paragraph 41 above, the Board of Appeal did not have the discretion provided for in Article 74(2) of Regulation No 40/94, there is no need to examine the applicant’s arguments seeking a declaration that the contested decision was mistaken in that regard in the light of the conditions laid down by OHIM v Kaul (14) ... ... 46 It follows that the Board of Appeal did not infringe Article 74(2) of Regulation No 40/94, in not taking into account, in the contested decision, the documents submitted late to the Opposition Division by the applicant which were intended to prove the existence and validity of the earlier marks.’ 34. At paragraph 47 of the judgment, the General Court declared inadmissible the complaint as regards the alleged misuse of powers by the Board of Appeal because the application did not satisfy the minimum requirements for the admissibility of a complaint, in particular the requirement of arguments in support of the complaint, laid down in Article 21 of the Statute of the Court of Justice of the European Union and Article 44(1)(c) of the Rules of Procedure of the General Court, provisions which apply to intellectual property matters pursuant to Articles 130(1) and 132(1) of those rules. 35. At paragraph 62 of its judgment, the General Court also rejected the third plea as being unfounded because, having concluded that the existence and validity of the earlier marks had not been duly substantiated by the opposing party, it was not entitled to examine the merits of the opposition or to analyse, in particular, the existence of a likelihood of confusion between the marks at issue. Cases T‑109/09 (15) and T‑152/09 (16) (the subject of the appeal in, respectively, Cases C‑121/12 P and C‑122/12 P) 36. Mr Rintisch’s actions against the decisions of the Board of Appeal of 21 January 2009 and 3 February 2009 were based on the same three pleas in law that he advanced in Case T‑62/09. 37. On 16 December 2011, the General Court dismissed the actions. 38. In both Case T‑109/09 and Case T‑152/09, the General Court rejected the three pleas on the basis of reasoning that, in essence, is the same as that which led to the rejection of identical pleas in Case T‑62/09 (now under appeal in Case C‑120/12 P). Summary of the appeals and the remedies sought in the appeals 39. In each appeal, Mr Rintisch asks the Court to set aside the judgment of the General Court and to order OHIM to pay the costs. 40. The appeals are based on two grounds: (i) infringement of Article 74(2) of Regulation No 40/94 inasmuch as the General Court wrongly found that the Board of Appeal has no discretion when deciding that an opposing party has not substantiated earlier marks and (ii) misuse of powers. Summary of the parties’ arguments in the three appeals Infringement of Article 74(2) of Regulation No 40/94 41. Mr Rintisch argues that the General Court erred in interpreting Article 74(2) of Regulation No 40/94 and Rule 50(1) of the Implementing Regulation. The General Court was wrong to conclude that the Board of Appeal has no discretion to decide that documents submitted after expiry of the time-limit set by the Opposition Division may be taken into account for its decision. The General Court also erred in failing to find that the Board of Appeal had erroneously exercised the discretionary powers conferred under Article 74(2). Whether the Board of Appeal has discretion 42. Mr Rintisch relies on the decision in Henkel v OHIM – LHS (UK) (Kleencare), where the General Court held that ‘[i]t follows from the principle of continuity of functions that, within the scope of Article 74(1) in fine …, the Board of Appeal is required to base its decision on all the matters of fact and of law which the party concerned introduced either in the proceedings before the department which heard the application at first instance or, subject only to Article 74(2), in the appeal’. (17) The Board of Appeal therefore had to take into account documents filed with the Opposition Division after the expiry of the time-limit, such as translations of documents showing the renewal of the trademarks. 43. Whilst Mr Rintisch accepts that the Court of Justice said in OHIM v Kaul (18) that the discretion in Article 74(2) was conditional upon there not being a provision to the contrary, he argues that that provision itself does not contain such a condition. Nor is there any other rule excluding the exercise by the Board of Appeal of that discretion. He thus also appears to contest the validity of the principle set out in OHIM v Kaul. 44. Mr Rintisch claims that, whilst it is true that Rule 20(1) applies to opposition proceedings, the General Court failed to take into account that Rule 50(1) prevails over Rule 20(1) in so far as it gives discretionary powers to the Board of Appeal. The General Court disregarded the fact that the third subparagraph of Rule 50(1), which is a special provision for examining appeals, expressly provides for the application of Article 74(2). In that regard, the General Court failed to distinguish between entirely new facts and the late production of ‘additional or supplementary’ facts and evidence. The General Court should also have held that, under Article 74(2), the Board of Appeal ought to have taken into account the translation filed after expiry of the time-limit. 45. OHIM argues that the question raised by the first ground of appeal can be resolved on the basis of two considerations. First, Rule 20(1) must be read against its historical background. In its older version, that rule did not state what consequence resulted from non-compliance with the time-limits under Rule 19(1). Rule 20(1), as amended by Regulation No 1041/2005, now expressly provides that an opposition must be rejected as unfounded if the opposing party has not proven the existence, validity and scope of protection of his earlier mark before the expiry of the period referred to in Rule 19(1). Second, Rule 19(3) clearly states that evidence in support of opposition proceedings must be submitted in the language of the proceedings or be accompanied by a translation into that language. That principle is based on the need to observe the rule of audi alteram partem and to ensure equality of arms between parties in inter partes proceedings. Evidence taken from registration certificates can thus be taken into account only if it complies with the requirements in Rule 19(3). The General Court was therefore right to hold that Rule 20(1) of the Implementing Regulation excludes any discretion to decide whether or not to take into account evidence and translations filed after the expiry of the time-limit. 46. OHIM goes on to address the possible parallelism between Rule 20 and Rule 22(2). With regard to the latter and the consequences of filing evidence after the expiry of the time-limit set by OHIM under that rule, the General Court had previously distinguished initial evidence from additional evidence. In OHIM’s view, that case-law concerns the submission of evidence at a later stage in the opposition proceedings. In relation to proof of genuine use, OHIM accepts that there may be different interpretations concerning the quality of the evidence submitted and thus a need for flexibility. In the context of demonstrating the existence and validity of earlier rights, however, there will never be any doubt about the sufficiency of the documents submitted. As a result, the distinction is not relevant in this context. 47. Unlike Bariatrix in Case C‑120/12 P, Valfleuri has intervened in Cases C‑121/12 P and C‑122/12 P. It takes the view that, in the circumstances leading to the present appeals, OHIM has no discretion. Its argument is based on the wording of Rules 19 and 20 of the Implementing Regulation and the fact that both provisions preclude OHIM from granting the opposing party further time in which to prove the existence, validity and scope of protection of the earlier mark. It further contests Mr Rintisch’s reliance on case-law that did not involve the application of Rules 19 and 20 of the Implementing Regulation as amended by Regulation No 1041/2005. Valfleuri notes that, in the present cases, Mr Rintisch was in possession of the required documentary evidence before the expiry of the time-limit set by OHIM; yet he has not put forward any reason for withholding the documents until October 2007. Exercise of the Board of Appeal’s discretion 48. Mr Rintisch submits that the General Court should have found that the Board of Appeal erred in stating that, if it had discretion under Article 74(2) of Regulation No 40/94, it would have exercised that discretion against him. Here, the General Court should have examined his arguments on the Board of Appeal’s failure to consider whether taking into account evidence filed after the expiry of the time-limit was justified because, on the one hand, the material was on the face of it likely to be relevant to the outcome of the opposition proceedings and, on the other hand, the state of the proceedings at which that late submission took place and the circumstances surrounding it did not preclude it. 49. OHIM submits that this plea is relevant only if the Court finds that the Board of Appeal does have a discretion. In any event, the Board of Appeal had explained how it would exercise that discretion in the circumstances of the case. Misuse of powers 50. Mr Rintisch appears to submit, as a second ground of appeal, misuse of powers by the General Court. However, no specific arguments in support of that ground have been put forward. 51. OHIM is uncertain whether this ground remains in the appeal. In any event, for lack of argument, it must be dismissed as inadmissible. Assessment Discretion of the Board of Appeal and exercise of that discretion 52. The first ground of appeal can be divided in two parts. The first part concerns whether the Board of Appeal has discretion to take into account evidence of the existence and validity of earlier marks and translations of that evidence filed after the expiry of the time-limit set by the Opposition Division. The second part concerns the exercise of that discretion, should it exist. Whether the Board of Appeal has discretion 53. In my Opinion in Case C‑621/11 P New Yorker SHK Jeans v OHIM, also delivered today, I explained that the starting point of the analysis on the scope of OHIM’s discretion in taking evidence in all types of proceeding must be that OHIM, including the Opposition Division and the Board of Appeal, normally does have discretion to take into account evidence submitted outside the time-limit set. 54. The appeal in New Yorker SHK Jeans v OHIM concerned whether the Opposition Division has a discretion to decide whether or not to take account of a second batch of evidence filed after the expiry of the time-limit set by OHIM in order to prove genuine use in opposition proceedings. 55. The present appeal concerns (i) evidence of the existence and validity of the marks on which the opposing party relies and (ii) translations of that evidence. That is the evidence that must be filed to get over the initial threshold in opposition proceedings. If there is no extant, valid earlier mark, there can be no question of opposing an application to register a new mark. 56. On the basis of the general rule in Article 74(2) of Regulation No 40/94, it appears evident to me, as it was to the General Court, (19) that the starting point here is also that the Board of Appeal has a discretion. 57. Does Regulation No 40/94 or the Implementing Regulation contain an exception that applies in the context of the three appeals at issue? 58. I shall consider that question first in relation to the submission of evidence; and address translations separately. 59. Apart from Article 74(2), Regulation No 40/94 contains no express rule concerning the discretion of the Board of Appeal to decide whether or not to take into account evidence of the existence and validity of marks filed after the expiry of the time-limit set by the Opposition Division. (20) 60. However, Article 42(1) of Regulation No 40/94 makes it clear that only proprietors of (earlier) marks can file a notice of opposition to registration of a trade mark. The opposing party must therefore provide information concerning the mark on which it relies and its rights to it. Material evidence of those facts, that is to say, the existence and validity of the mark, can be filed later to the Opposition Division. (21) 61. Whilst the material evidence does not have to be filed with the notice of opposition, the information concerning the existence and validity of the mark relates to the admissibility of the opposition. It must therefore be considered by the Opposition Division before it addresses the merits. The need for procedural efficiency, sound administration and legal certainty lead me to conclude that, when read in that context, Article 74(2) of Regulation No 40/94 must be understood as excluding the possibility that the Board of Appeal may consider evidence which, without having been submitted at any earlier stage of the opposition proceedings as a whole, is submitted to it in support of an element pertaining to the admissibility of an opposition, such as (specifically) evidence of the existence and validity of the (earlier) marks. 62. The third subparagraph of Rule 50(1) of the Implementing Regulation confirms that position. 63. The first part of the third subparagraph of Rule 50(1) sets out the general rule applicable to appeals against decisions of the Opposition Division. I read that rule, and in particular the words ‘shall limit’, to mean that the Board of Appeal can consider only facts and evidence that were presented within the time-limit ‘set in or specified by the Opposition Division in accordance with the Regulation and these Rules’. Whilst the text does not distinguish between evidence of the existence and validity of earlier marks and other evidence, different rules in Regulation No 40/94 and the Implementing Regulation govern the submission of those two types of evidence. Rules 19 and 20 of the Implementing Regulation govern the submission of evidence of the existence and validity of earlier marks and translations of any documents submitted. 64. Contrary to the argument advanced by Mr Rintisch, the first part of the third subparagraph of Rule 50(1) does not therefore ‘prevail over’ Rule 20(1). Rather, it makes a ‘renvoi’ to that provision and excludes, with regard to facts and evidence other than ‘additional or supplementary facts and evidence’, the possibility of the Board of Appeal examining facts and evidence presented outside the time-limits set or specified by the Opposition Division in accordance with Regulation No 40/94 and the Implementing Regulation. The Board of Appeal has, just like the Opposition Division, (22) no discretion to decide whether or not to take such evidence into account. 65. The second part qualifies the rule set out in the first part of the sentence: that rule applies ‘unless the Board considers that additional or supplementary facts and evidence should be taken into account pursuant to Article 74(2)’ which sets out the general rule of discretion. 66. Whether the Board of Appeal has that discretion thus depends on whether the evidence of the existence and validity of earlier marks can be characterised as ‘additional or supplementary’. (23) Whilst I do not consider it necessary, for the purposes of these appeals, to provide an exhaustive definition of those words, it is plain that, in order for evidence to be so characterised, other evidence must have been submitted at an earlier stage of the proceedings. 67. In circumstances where the Implementing Regulation defines (i) the indispensable formal requirements for evidence to be admissible to prove a fact and (ii) the time-limit for submitting that evidence, I do not consider that the opposing party can submit inadequate evidence within the time-limit set and then later, possibly only on appeal, submit evidence that is actually indispensable under the guise of ‘additional or supplementary’ evidence. 68. Whatever the basis for the opposition, the opposing party must always file proof of the existence, validity and scope of protection of the earlier marks on which it relies. Rule 19(2) of the Implementing Regulation states: ‘the opposing party shall provide the following evidence’. Under paragraph 2(a)(ii), it then defines the documentary evidence required in circumstances where the opposition is based on a trade mark which is not a Community trade mark, namely the relevant registration certificate and, if appropriate, the latest renewal certificate. 69. Since its amendment by Regulation No 1041/2005, Rule 20(1) is clear on the consequence if the opposing party fails to submit the relevant registration (and, where necessary, renewal) certificate before the expiry of the time-limit set by the Opposition Division: ‘the opposition shall be rejected as unfounded’. 70. Although it is true that that phrase is similar to the phrase ‘the Office shall reject the opposition’ in Rule 22(2) of the Implementing Regulation, I nevertheless consider that the phrases should be interpreted differently. 71. I concluded in my Opinion in Case C‑621/11 P New Yorker SHK Jeans v OHIM that, under the second sentence of Rule 22(2) of the Implementing Regulation, the Opposition Division must reject the opposition if no evidence of genuine use of the mark has been submitted at the time of the expiry of the time-limit set by OHIM. (24) I also stated that the exception to the general rule in Article 74(2) of Regulation No 40/94 no longer applies if the opposing party, who is asked to show genuine use of its mark, has, in good faith, submitted credible initial evidence showing that use. (25) Whilst Rule 22(3) describes what needs to be proven and Rule 22(4) lists how this can be done, there is no exhaustive list of indispensable documentary evidence that must be submitted to satisfy the burden of showing genuine use. Depending on the circumstances, such as the type of mark and the market in which it is used, the quality and quantity of evidence can vary and the sufficiency of the initial evidence submitted may legitimately be called into question by the applicant during the inter partes procedure. 72. I do not interpret Rule 20(1) in the same way. In Rule 19(2)(a)(ii), the legislature has essentially defined an evidentiary threshold: for registered marks which are not Community trade marks, the opposing party is required to submit a copy of the relevant registration certificate and, if appropriate, of the latest renewal certificate showing that the term of protection of the trade mark extends beyond the time-limit set by the Opposition Division and any extension thereof, or equivalent documents emanating from the administration by which the trade mark was registered. 73. Either the opposing party files the relevant registration (and, if appropriate, renewal) certificate or it does not. I therefore agree with OHIM that there is no scope for questioning the sufficiency of the evidence or for debating whether it is additional or supplementary to evidence previously submitted. Indispensable documentary evidence cannot be additional or supplementary to other documentary evidence. (The latter can, however, be additional or supplementary to the former.) 74. Unlike Mr Rintisch, I see no basis for distinguishing between documents filed with the Opposition Division after the expiry of the time-limit and those filed with the Board of Appeal after that date. On my reading of Rules 19(2)(a)(ii) and 20(1) of the Implementing Regulation, the Opposition Division has no discretion to take into account registration certificates or renewal certificates submitted after the time-limit set. In accordance with the principle of continuity of functions and unless a provision to the contrary exists, there is no basis for allowing the Board of Appeal to take account of late indispensable evidence which the Opposition Division cannot take into account. Continuity implies consistency in the application of the same rules. (26) 75. In my opinion, the same conclusion applies to the late submission of translations of the relevant registration (and, if appropriate, renewal) certificates. 76. Rule 19(3) of the Implementing Regulation makes it clear that documents described in Rule 19(2) are to be submitted either in the language of the proceedings or accompanied by a translation. The same rule provides that the translation must be ‘submitted within the time-limit specified for submitting the original document’. Under Rule 19(4), OHIM ‘shall not take into account’ documents that are not submitted or translated within the time-limit set. Against the background of these unambiguous terms, it seems to me that the Opposition Division cannot have a discretion to decide whether or not to take account of translations of the documents described in Rule 19(2)(a)(ii) which are submitted late. Nor can the Board of Appeal. 77. Based on these considerations, I consider that the General Court was right to hold that the Board of Appeal did not err in finding that it had no discretion to take into account evidence of the existence and validity of the earlier marks filed after the expiry of the time-limit set by the Opposition Division. Exercise of the discretion of the Board of Appeal 78. If the Board of Appeal has no discretion to take account of (i) evidence that is neither additional nor supplementary and (ii) translations filed after expiry of the time-limit set by the Opposition Division, there exists no scope to consider how it might or should exercise such a discretion. 79. I therefore agree with OHIM that this ground of appeal is relevant only if this Court finds that the General Court erred in its interpretation of Article 74(2) of Regulation No 40/94 and concludes that, in relation to the evidence and translations at issue in the three appeals, the Board of Appeal has a discretion to decide whether or not to take account of those documents. Given the conclusion I have reached in relation to the first part of this ground, I shall not consider the second part further. Misuse of powers 80. I agree with OHIM that, in the absence of any reasoned argument to support the second ground of appeal, it must be rejected as inadmissible. Costs 81. Under Article 138(1) of the Rules of Procedure, which applies to appeals on the basis of Article 184(1) of the same rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Article 184(4) states that the Court may decide that an intervener at first instance who takes part in the proceedings is to bear his own costs. 82. In each case, OHIM has applied for costs, and Valfleuri has applied for costs in Cases C‑121/12 P and C‑122/12 P. In my assessment, Mr Rintisch should be unsuccessful in all cases. Conclusion 83. For these reasons, I propose that the Court should: – dismiss the appeals in their entirety; – order Mr Rintisch to pay the costs incurred by OHIM and those of the intervening party in Cases C‑121/12 P and C‑122/12 P. 1 – Original language: English. 2 – Whilst Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) (‘Regulation No 40/94’) as amended has been repealed and replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1) (‘Regulation No 207/2009’), the regulation in force at the time when Mr Rintisch filed his notices of opposition and when other relevant subsequent events occurred in the three cases was Regulation No 40/94. In any event, materially Regulation No 207/2009 does not more than codify Regulation No 40/94 and its amendments. The provisions of Regulation No 40/94 at issue in these proceedings remained unaffected. 3 – Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Regulation No 40/94 (OJ 1995 L 303, p. 1) as amended by, inter alia, Commission Regulation (EC) No 1041/2005 of 29 June 2005 (OJ 2005 L 172, p. 4). 4 – Article 8 sets out the relative grounds for refusal of registration. 5 – See the fifth recital in the preamble to the Implementing Regulation. 6 – See the sixth recital in the preamble to the Implementing Regulation. 7 – Rule 17 sets out the grounds for declaring an opposition inadmissible. These include: non-payment of the opposition fee, late filing of the notice of opposition, lack of statement of the grounds of opposition, failure to clearly identify the earlier mark or the earlier right on which the opposition is based, failure to submit a translation as required under Rule 16(1), failure to comply with the provisions of Rule 15. 8 – I take the opening words to mean: ‘If, before the expiry of the period referred to in Rule 19(1),’. 9 – Nice Agreement of 15 June 1957 concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, as revised and amended. 10 – Those registration certificates were dated March 1996, October 1996 and March 1997. 11 – Judgment of 16 December 2011. 12 – Case T‑86/05 K & L Ruppert Stiftung v OHIM – Lopes de Almeida Cunha and Others (CORPO livre) [2007] ECR II‑4923. 13 – Order of 5 March 2009 in Case C‑90/08 P. 14 – Case C‑29/05 P [2007] ECR I‑2213. 15 – Judgment of 16 December 2011. 16 – Judgment of 16 December 2011. 17 – Case T‑308/01 [2003] ECR II‑3253, paragraph 32. 18 – Cited in footnote 14 above, paragraph 42. 19 – See paragraph 30 of the judgment under appeal in Case T‑62/09; paragraph 31 of the judgments under appeal in Cases T‑109/09 and T‑152/09. 20 – See Rule 15 of the Implementing Regulation. 21 – See Rule 19 of the Implementing Regulation. 22 – See point 74 below. 23 – The different language versions of the third subparagraph of Rule 50(1) do not fully correspond. For example, the French text refers to ‘faits et preuves nouveaux ou supplémentaires’ and the Dutch text states ‘aanvullende feiten en bewijsstukken’. 24 – See point 57 of my Opinion in New Yorker SHK Jeans v OHIM, cited in point 53 above. 25 – Ibid., point 65; Article 74(2) of Regulation No 40/94 is the equivalent of Article 76(2) of Regulation No 207/2009, in issue in that case. 26 – See paragraph 111 of my Opinion in OHIM v Kaul, cited in footnote 14 above.