Judgment — ECLI:EU:T:2002:140
Date: 2002-06-05
Language of the case: English
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Trade marks;Intellectual, industrial and commercial property
Concepts: Rights of the defence;General;Appeals before the Boards of Appeal
Procedure: Action for annulment - unfounded

Summary of the Judgment 
1. Community trade mark — Decisions of the Office — Observance of the rights of the 
defence 
(Council Regulation No 40/94, Art. 73) 
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SUMMARY — CASE T-198/00 
2. Community trade mark — Appeals procedure — Appeal against a decision of the 
examiner — Examination by the Board of Appeal — Scope 
(Council Regulation No 40/94, Art. 62(1)) 
3. Community trade mark — Definition and acquisition of a Community trade mark — 
Prior registration of the trade mark in certain Member States — Effect 
(Council Regulation No 40/94, Art. 7) 
1. When the Board of Appeal of the 
Office for Harmonisation in the Inter­
nal Market (Trade Marks and Designs) 
has a case before it seeking to overturn 
a refusal to register a Community 
mark, it may, in the examination of 
the file, use any of the items of 
information included in the application 
form, without first having to give the 
applicant the opportunity to comment 
on them. More specifically, the Board 
of Appeal is under no obligation to 
invite the applicant to present its views 
on the words entered on the form by 
the applicant itself, where they do not 
appear to be an obvious error on the 
part of the trade mark applicant. 
(see para. 20) 
2. In cases brought before the Boards of 
Appeal of the Office for Harmon­
isation in the Internal Market (Trade 
Marks and Designs) seeking to over­
turn a refusal to register a Community 
mark, the Boards of Appeal must be 
able to base their decisions on argu­
ments not presented before the exam­
iner to the extent to which the party 
concerned has been able to comment 
on the matters affecting the application 
of the legal provision in question. As 
there is in principle a continuity of 
function between the examiner and the 
Boards of Appeal, the latter may re­
examine the application without being 
limited by the examiner's reasoning. 
(see para. 25) 
3. In the context of an application for 
registration of a Community mark, 
registrations already effected in 
Member States, or even in non-
Member States, are factors which are 
not decisive for the purposes of the 
examination of the absolute grounds 
for refusal set out in Article 7 of 
Regulation No 40/94. Because of the 
unitary character of the Community 
trade mark, the Community trade 
mark regime is an autonomous legal 
system with a set of objectives peculiar 
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HERSHEY FOODS v OHIM (KISS DEVICE WITH PLUME) 
to itself; it applies independently of any 
national system. Consequently, the 
eligibility of a mark for registration as 
a Community trade mark must be 
assessed solely on the basis of the 
relevant Community legislation, with 
national trade mark registrations being 
factors which are not binding on the 
Office for Harmonisation in the Inter­
nal Market (Trade Marks and 
Designs), but which may nevertheless 
be taken into consideration in the 
examination of the absolute grounds 
for refusal. 
(see para. 32) 
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