62022CC0337
OPINION OF ADVOCATE GENERAL
ĆAPETA
delivered on 10 April 2025 (
1
)
Case C‑337/22 P
European Union Intellectual Property Office
v
Nowhere Co. Ltd
(Appeal – EU trade mark – Opposition proceedings – Regulation (EC) No 207/2009 – Article 8(4) – Earlier rights – Relative ground for refusal – Application for registration of the figurative mark APE TREES – Withdrawal of the United Kingdom from the European Union – Disappearance of earlier right at the end of the transition period – Disposal of an opposition purely on the basis of the date at which a decision is taken)
I. Introduction
1.
The present case concerns an appeal against the judgment of the General Court of 16 March 2022, Nowhere v EUIPO – Ye (APE TEES) (T‑281/21, ‘the judgment under appeal’, EU:T:2022:139). Therein, that court annulled the decision of the European Union Intellectual Property Office (‘EUIPO’) to reject as unsuccessful an opposition based on earlier UK rights ‘for this reason alone’, (
2
) given that, following the end of the transition period after the withdrawal of the United Kingdom from the European Union, such rights could no longer form the basis for an opposition to registration of an EU trade mark – even where said proceedings were commenced when the United Kingdom was still a Member State of the European Union.
2.
EUIPO has appealed that finding. In a single plea in law, that agency argues that, in doing so, the General Court erred in its interpretation of Article 8(4) of Council Regulation (EC) No 207/2009 (
3
) (‘the 2009 EUTRM’). I disagree.
II. The background to these proceedings
A.
Opposition proceedings before EUIPO
3.
The background to the underlying action is set out in paragraphs 1 to 15 of the judgment under appeal. For the purposes of the present analysis, what requires retelling is the following.
4.
On 30 June 2015, Mr Junguo Ye (‘Mr Ye’) applied for registration as a trade mark for the following figurative sign (‘the contested mark’):
5.
On 8 March 2016, Nowhere Co. Ltd (‘Nowhere’), the applicant at first instance, filed a notice of opposition to registration of that trade mark, pursuant to Article 41 of the 2009 EUTMR, inter alia on the basis of the following three earlier, non-registered figurative trade marks used in the course of trade, inter alia, in the United Kingdom:
6.
The Opposition Division and the Second Board of Appeal of EUIPO rejected the applicant’s opposition in November 2017 and October 2018, respectively.
7.
After an annulment was sought before the General Court against the Second Board of Appeal’s decision of October 2018, that board revoked that decision on 17 July 2019. For that reason, the General Court decided that there was no longer any need to adjudicate on the action. (
4
)
8.
At midnight on 31 December 2020, the transition period laid down in Article 126 of the Withdrawal Agreement (
5
) came to an end.
9.
By decision of 10 February 2021, the Second Board of Appeal dismissed Nowhere’s appeal. In the relevant part, the contested decision explains that:
‘24
After the United Kingdom’s withdrawal from the [European Union] and the expiry of the withdrawal agreement after 31 December 2020, rights that may exist in the United Kingdom do not constitute a legal basis in accordance with Article 8(2) [of the 2009 EUTMR] for the purpose of proceedings based on relative grounds, such as Article 8(1)(b), Article 8(4) … and Article 8(5) [of the 2009 EUTMR].
25
It follows that IR No 996157, designating the United Kingdom, and IR No 871962, designating the [United Kingdom], cannot be relied on under Article 8(1)(b) and Article 8(5) [of the 2009 EUTMR].
26
The opponent cannot claim passing off under English law in respect of Article 8(4) [of the 2009 EUTMR].
27
As far as these asserted prior rights are concerned, the opposition must remain unsuccessful for this reason alone.’
B.
Proceedings before the General Court
10.
By application of 21 May 2021, Nowhere brought an action under Article 263 TFEU before the General Court.
11.
In the judgment under appeal, the General Court annulled the contested decision. It upheld the first head of claim of the single ground for annulment, alleging infringement of Article 8(4) of the 2009 EUTMR, and rejected the second head of claim seeking an alteration of the contested decision. (
6
)
C.
Proceedings before the Court of Justice
12.
By order of 16 November 2022, the Court of Justice allowed the appeal to proceed. It considered that EUIPO’s request to that effect demonstrated, to the requisite legal standard, that the appeal raised issues that were significant with respect to the unity, consistency and development of EU law. (
7
)
13.
By decision of the President of the Court of 21 March 2023, the Federal Republic of Germany was granted leave to intervene in support of EUIPO.
14.
By order of the President of the Court of 27 April 2023, the International Trademark Association (INTA) was granted leave to intervene in support of EUIPO. (
8
)
15.
By its appeal of 23 May 2022, EUIPO requested that the Court set aside the judgment under appeal, dismiss the action at first instance and order Nowhere to pay the costs.
16.
In its response, lodged on 21 January 2023, Nowhere requested that the Court dismiss the appeal and order EUIPO to pay the costs of the proceedings.
17.
By measure of inquiry of 2 July 2024, the Court asked the parties to take a position on the effects of the judgment of 20 June 2024, EUIPO v Indo European Foods (C‑801/21 P, EU:C:2024:528). In their respective responses, Nowhere and EUIPO, in essence, opine that that judgment does not concern the substantive question at issue in this appeal, but rather addresses solely the question of interest to act.
III. Analysis
A.
Understanding the judgment under appeal
18.
The judgment under appeal must be read in the light of the timeline of the present case.
19.
To recall, Mr Ye’s application for registration of the contested mark is dated 30 June 2015. Shortly thereafter, Nowhere filed its opposition on the basis of Article 8(4) of the 2009 EUTMR: the presence of an earlier right that would give rise to a conflict with the mark for which registration was sought. Therein, Nowhere argued that it was the proprietor of a non-registered trade mark used in the course of trade of more than mere local significance in the United Kingdom.
20.
The effect of opposition to registration is the delay of registration of a mark until EUIPO has dealt with that opposition.
21.
However, where EUIPO definitively disposes of an opposition, (
9
) registration of the mark occurs retroactively from the date of filing of the application. (
10
)
22.
When, on 10 February 2021, EUIPO finally disposed of Nowhere’s opposition in the contested decision, almost seven years had elapsed since the date of application for registration. (
11
)
23.
The contested mark in the present case was thus registered retroactively from 30 June 2015, the initial date of application for its registration. (
12
)
24.
In reaching its decision of 10 February 2021, EUIPO considered that no conflict could arise during the period of 30 June 2015 to 31 December 2020 given that, from the end of the transition period onwards (that is, midnight on 31 December 2020), all earlier UK rights ceased to be EU rights capable of sustaining an opposition in EU trade mark proceedings.
25.
In the judgment under appeal, the General Court rejected that logic. In essence, that court reasoned as follows.
26.
First, it explained that the existence of a relative ground for refusal ‘must be assessed as at the time of filing of the application for registration of an EU trade mark against which an opposition has been brought’. (
13
)
27.
Second, that court found that the fact that those earlier UK rights could lose their status as a trade mark registered in a Member State after the date of the filing of an application for registration of an EU trade mark was, in principle, irrelevant. What mattered was that the application for registration of the mark applied for was filed before the expiry of the transition period, such that the earlier UK rights were capable of forming the basis of an opposition. (
14
) For that reason, the Board of Appeal should have taken those earlier rights into account in its assessment and not refused to do so ‘for the sole reason that the transition period had expired at the time when the contested decision was adopted’. (
15
)
28.
Third, the General Court considered that given that registration of an EU trade mark is valid from the date of filing of the application, and not only from the date on which any opposition is finally rejected, ‘a conflict could … have existed during the period between the date on which the EU trade mark application was filed and the expiry of the transition period’. (
16
) In the present case, that would concern the period which ran from 30 June 2015 to 31 December 2020 – the period which I refer to in the above graph as the ‘period of potential conflict’.
29.
Given that overlap, that court explained that ‘it is difficult to comprehend why the applicant’s earlier non-registered trade marks used in the course of trade in the United Kingdom would have to be denied protection also during that period, in particular with regard to the potential use of the mark applied for, which the applicant regards as being in conflict with those earlier non-registered trade marks. Consequently, it must also be acknowledged that the applicant has a legitimate interest in the success of its opposition as regards that period.’ (
17
)
30.
I do not see why the General Court would have erred in that reasoning.
31.
It is possible, even if EUIPO did not decide that issue, that, at the point at which the application for an EU trade mark was sought, Nowhere held earlier UK rights.
32.
Since such rights are regarded as objects of property and thus form part of the system of undistorted competition, (
18
) obtaining protection under the system of EU trade marks confers on its proprietor certain exclusive rights. (
19
)
33.
One of those rights is to monopolise that sign in respect of certain goods and services. (
20
)
34.
Through the relative grounds for refusal, Article 8 of the 2009 EUTMR confers on the proprietor of an EU trade mark the right to protect that mark against aspiring marks in opposition proceedings. (
21
)
35.
In the present case, given the potential existence of an earlier right, there was also a potential for co-existence and thus conflict between an existing right (that held by Nowhere) and an aspiring trade mark (that applied for by Mr Ye) if registration were to have occurred on 30 June 2015.
36.
As the General Court found, and as is uncontested by EUIPO, that potential for co-existence and conflict continued all the way until the end of the transition period, that is to say, 31 December 2020. (
22
)
37.
That is because, as EUIPO itself explains, it was only from that date onwards that Nowhere’s earlier UK rights ceased to produce effects within the European Union. (
23
)
38.
The fact that, at the point at which EUIPO disposed of the opposition by means of the contested decision, Nowhere’s earlier UK rights were no longer capable of satisfying their essential function (
24
) – that is, of distinguishing that company’s products from those emanating from a different origin – is irrelevant in relation to the period before 31 December 2020. (
25
)
39.
Irrespective of the disappearance of those earlier UK rights during the period before 31 December 2020, the fact remained that, if registered, a significant period of conflict would have been possible given the unresolved potential co-existence of two protected signs in the European Union.
40.
That question of the potential for conflict is far from theoretical. Indeed, as I have explained, and as the General Court correctly observed, (
26
) registration of an EU trade mark takes place from the date of filing of the application.
41.
However, at that point in time, Nowhere’s mark was possibly still in existence and thus had the potential to conflict with the contested mark.
42.
Accordingly, even though Article 8(4) of the 2009 EUTMR requires that an assessment of the potential for conflict be carried out on the date at which EUIPO determines whether all the conditions for opposition are met, (
27
) which, in this case, was 10 February 2021, that does not mean that EUIPO is free to ignore the fact that – prior to that date but between the point of application for registration of an EU trade mark and the date at which EUIPO disposes of an opposition to registration – a conflict might have existed which would have prevented registration of said mark if EUIPO had taken its decision at that point in time. (
28
)
43.
For the above reasons, the General Court was right to conclude that EUIPO could not simply dispose of an opposition, the conditions of which may have been satisfied for a period of over five years, solely by reason of the fact that, at the point of formulating its final decision on that opposition, the rights at issue had disappeared.
44.
That approach would have the effect of depriving a protected sign of protection during a period in which that sign was capable of satisfying its essential function of distinguishing a proprietor’s goods or services from those emanating from a different origin – even if that sign later lost that function.
45.
On the contrary, if one were to take the argument to the extreme, it would mean that a conflict between two signs could exist for the entirety of the period between the application for registration of an EU trade mark and EUIPO’s final decision and still not lead to a successful opposition if, on the day before that decision is made, the earlier sign disappears. I find that logic difficult to square with the monopolisation rights accorded by the 2009 EUTMR.
46.
That is not to say that EUIPO could not have automatically disposed of that opposition for the period after the end of the transition period, that is to say, from 1 January 2021 onwards.
47.
As I have sought to highlight in the graph at the outset of this section, for that period in time, no conflict could have arisen by reason of the principle of territoriality, even if EUIPO had established that the contested mark and Nowhere’s mark conflicted in the past.
48.
Therefore, without examining the period before 31 December 2020, EUIPO was only capable of making a decision about the status of the opposition for the period from 1 January 2021 onwards. That is, Mr Ye’s mark could be registered from then on, without there being any need for EUIPO to have regard to the period prior to that date.
49.
However, in view of Articles 51 and 52 of the 2017 EUTMR, it does not appear possible to ‘modify’ the point in time at which registration of a mark takes place, where opposition has been rejected by EUIPO.
50.
Accordingly, it would appear from those provisions that EUIPO must, in fact, accept an opposition and refuse the registration of an aspiring mark where it finds that a conflict had arisen during a period of co-existence of two protected signs. In the present case, that would mean that EUIPO should have refused the registration of Mr Ye’s mark if it had found that that mark conflicted with Nowhere’s earlier right during the period between 30 June 2015 and 31 December 2020.
51.
As the General Court explained in paragraph 43 of the judgment under appeal, in such a case, ‘it would have been open to the other party to the proceedings before the Board of Appeal to file a new application for registration of the mark applied for as soon as the transition period had expired, an application which would no longer, in any event, have come into conflict with the earlier non-registered trade marks in so far as they had been used in the course of trade in the United Kingdom’.
52.
It follows that EUIPO could only have refused Nowhere’s opposition and registered Mr Ye’s mark from 30 June 2015, the date at which he filed his application for registration of an EU trade mark, if that agency had established that there was no potential for conflict prior to 31 December 2020.
B.
The appeal
53.
The substantive part of EUIPO’s appeal is based on a single ground relating to the infringement of Article 8(4) of the 2009 EUTMR.
54.
More precisely, EUIPO alleges that, in paragraphs 25 to 31 and 33 to 46 of the judgment under appeal, the General Court interpreted that provision as requiring EUIPO solely to have regard to the existence of a relative ground for refusal on the date of the filing of an application for registration of an EU trade mark. In so doing, that court allegedly conflated the dates governing the applicable substantive law and those governing the existence of a relative ground for refusal. Moreover, in requiring EUIPO to take account of a possible period of co-existence in the particular opposition at issue, that court would have disregarded the consequences flowing from the United Kingdom’s withdrawal from the European Union and the end of the transition period, in breach of the principle of territoriality.
55.
In essence, Nowhere opposes those arguments.
56.
I consider that EUIPO fundamentally misinterprets the judgment under appeal.
57.
First, in none of the paragraphs cited by EUIPO does the General Court interpret Article 8(4) of the 2009 EUTMR as solely requiring that regard be had to the date of filing. Nor am I able to discern from those paragraphs a ‘new general rule of legal nature’, as EUIPO submits, that events occurring after the filing date should be deemed irrelevant for the outcome of an opposition.
58.
Indeed, in paragraphs 28 and 29 of the judgment under appeal, the General Court merely explains that both the applicable substantive law governing a relative ground for refusal and the presence of a conflicting mark are, principally, to be assessed as of the filing date. In making that statement, the General Court, however, only identifies which law to apply to the particular factual circumstances at issue (
29
) and how to determine priority between conflicting marks. (
30
)
59.
Accordingly, the General Court also does not err in paragraphs 30 and 31 of the judgment under appeal when it draws the necessary consequences arising from those parameters to find that, in principle, it was irrelevant that the contested decision was taken after the expiry of the transition period if the earlier UK rights relied on in opposition had, indeed, been used in the course of trade in the United Kingdom prior to that point in time.
60.
Moreover, contrary to what EUIPO argues, paragraphs 32 to 42 and 46 of the judgment under appeal do not lay down an interpretation of Article 8(4) of the 2009 EUTMR that would require that agency exclusively to take account of the date of filing of an opposition to the application for registration of an EU trade mark. Instead, in those paragraphs, the General Court merely dismissed EUIPO’s arguments that the text, context and purpose of Article 8(4) of the 2009 EUTMR would, in effect, enable EUIPO to affect the outcome of an otherwise valid opposition by formulating its final decision on said opposition at a point in time at which the earlier right invoked had ceased to be capable of preventing registration of an aspiring mark. As I have explained in Section III.A of this Opinion, in view of the consequences that would have arisen from EUIPO’s interpretation, the General Court’s reading of Article 8(4) of that regulation was entirely justified.
61.
Second, as regards the alleged breach of the principle of territoriality, it must be observed that, in paragraphs 25 to 27 of the judgment under appeal, the General Court merely explained that the Withdrawal Agreement contained no arrangements that would regulate the outcome of an opposition filed prior to the end of the transition period but decided thereafter. (
31
) That observation alone does not conflict with the principle of territoriality.
62.
Moreover, in recognising that an opposition could legitimately be based on earlier UK rights during a point prior to the end of the transition period, the General Court did not – as indeed would have been wrong – interpret Article 8(4) of the 2009 EUTMR as being capable of accommodating rights from a territory outside of the European Union in breach of the principle of territoriality.
63.
Rather, in paragraphs 31 and 42 of the judgment under appeal, that court merely indicated that, given the purpose of opposition proceedings, EUIPO could not – from the outset and absent an assessment of substance – dismiss, purely by reason of the date at which the contested decision was taken, Nowhere’s claim that its earlier rights did conflict with, and thus prevented registration of, Mr Ye’s mark during the period of 30 June 2015 to 31 December 2020.
64.
It follows that I suggest that the Court of Justice reject EUIPO’s sole ground of appeal as unfounded.
IV. Costs
65.
Under Article 138(1) of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As I propose to dismiss EUIPO’s appeal as unfounded, I consider that it should be ordered to bear its own costs and to pay those incurred by Nowhere, both at first instance and at the appeal stage.
66.
Pursuant to Article 140(1) and (3) of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 184(1) of the Rules of Procedure, the German Government and INTA should bear their own costs.
V. Conclusion
67.
In the light of the above considerations, I propose that the Court of Justice should:
(1)
dismiss the appeal as unfounded;
(2)
uphold the judgment of 16 March 2022, Nowhere v EUIPO – Ye (APE TEES) (T‑281/21, EU:T:2022:139);
(3)
order the European Union Intellectual Property Office to bear its own costs and to pay those incurred by Nowhere Co. Ltd both at first instance and at the appeal stage; and
(4)
order the German Government and the International Trademark Association to bear their own costs.
(
1
)	Original language: English.
(
2
)	See, to that effect, the decision of the Second Board of Appeal of EUIPO of 10 February 2021 (Case R 2474/2017-2) (‘the contested decision’), paragraph 27.
(
3
)	Regulation of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
(
4
)	See order of 18 December 2019, Nowhere v EUIPO – Junguo Ye (APE TEES) (T‑12/19, not published, EU:T:2019:907, operative part).
(
5
)	Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (OJ 2019 C 384I, p. 1) (‘the Withdrawal Agreement’).
(
6
)	Judgment under appeal, paragraphs 47 to 49.
(
7
)	Order of 16 November 2022, EUIPO v Nowhere (C‑337/22 P, EU:C:2022:908).
(
8
)	Order of the President of the Court of 27 April 2023, EUIPO v Nowhere (C‑337/22 P, EU:C:2023:409).
(
9
)	See Article 51(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1) (‘the 2017 EUTMR’), which lays down that registration of a mark occurs after the disposal of an opposition. Note that given the date of the contested decision, the procedural elements of this file are governed by the 2017 EUTMR; see, ex multis, judgment of 8 November 2016, BSH v EUIPO (C‑43/15 P, EU:C:2016:837, paragraph 2).
(
10
)	Pursuant to Article 52 of the 2017 EUTMR, ‘EU trade marks shall be registered for a period of 10 years from the date of filing of the application. Registration may be renewed … for further periods of 10 years.’
(
11
)	I cannot help but notice, in that regard, that, in paragraph 27 of the judgment under appeal, the General Court specifically highlighted that EUIPO’s administrative file ‘does not contain any document dating from the period of almost 18 months which elapsed between the notification of the revocation decision to the parties to the proceedings before the Board of Appeal on 22 August 2019 and the adoption of the contested decision on 10 February 2021’.
(
12
)	See, to that effect, paragraphs 41 and 42 of the judgment under appeal.
(
13
)	See judgment under appeal, paragraph 28.
(
14
)	See, to that effect, judgment under appeal, paragraphs 29 and 31.
(
15
)	See judgment under appeal, paragraph 31.
(
16
)	See judgment under appeal, paragraph 42.
(
17
)	See judgment under appeal, paragraph 42.
(
18
)	See, for example, judgment of 17 October 1990, HAG GF (C‑10/89, EU:C:1990:359, paragraph 13) (explaining that ‘trade mark rights are … an essential element in the system of undistorted competition which the Treaty seeks to establish and maintain. Under such a system, an undertaking must be in a position to keep its customers by virtue of the quality of its products and services, something which is possible only if there are distinctive marks which enable customers to identify those products and services. For the trade mark to be able to fulfil this role, it must offer a guarantee that all goods bearing it have been produced under the control of a single undertaking which is accountable for their quality’).
(
19
)	See recitals 9 and 11 of the 2009 EUTMR.
(
20
)	See Article 9(1) of the 2009 EUTMR and, ex multis, to that effect, judgments of 6 May 2003, Libertel (C‑104/01, EU:C:2003:244, paragraph 49) (on the notion of ‘monopolisation’ of the resulting right), and of 25 July 2018, Mitsubishi Shoji Kaisha and Mitsubishi Caterpillar Forklift Europe (C‑129/17, EU:C:2018:594, paragraph 33) (explaining that registration of an EU trade mark ‘entitles the proprietor to prevent all third parties from using, in the course of trade, without his consent, a sign identical to the mark in relation to the goods or services identical to those for which it has been registered [or] a sign which, because of its identity with, or similarity to, the trade mark and the identity or similarity of the goods or services covered by the trade mark and the sign, there exists a likelihood of confusion on the part of the public, a likelihood of confusion that includes the likelihood of association between the sign and the trade mark’).
(
21
)	See, to that effect, recital 8 of the 2009 EUTMR. See also, by analogy, judgment of 22 October 2015, BGW (C‑20/14, EU:C:2015:714, paragraph 26 and the case-law cited) (explaining, as regards Article 4(1)(b) of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (OJ 2008 L 299, p. 25), which mirrors the relative grounds for refusal of Article 8(1) of the 2009 EUTMR, that provision ‘is intended to protect the individual interests of proprietors of earlier marks that come into conflict with the sign applied for and thus guarantees the trade mark as an indication of origin if there is a likelihood of confusion’).
(
22
)	In that regard, and thus contrary to what EUIPO appears to imply, the General Court did not depart from its case-law relating to the need for co-existence between two protected signs to satisfy the essential purpose of Article 8(4) of the 2009 EUTMR. See, in that respect, judgment of 13 September 2006, MIP Metro v OHIM – Tesco Stores (METRO) (T‑191/04, EU:T:2006:254, paragraph 32) (explaining that, as regards ‘the temporal scope of [Articles 8 and 41 of what is now the 2009 EUTMR], both those marks must co-exist for a certain period. The function of an earlier mark as a means of identifying its origin cannot be undermined by another mark which is registered only after the term of protection of the earlier mark has expired. If there is no period during which both marks co-exist, no conflict can arise’).
(
23
)	That is so by reason of the principle of territoriality, which limits the effects of the rights derived from a mark to the territory within which they are protected. See recital 4 of the 2009 EUTMR and judgment of 29 March 2011, Anheuser-Busch v Budějovický Budvar (C‑96/09 P, EU:C:2011:189, paragraph 114) (describing the principle of territoriality as ‘a fundamental principle of intellectual property law’). See also, in that regard, Opinions of Advocate General Trstenjak in Budějovický Budvar (C‑482/09, EU:C:2011:46, point 50) and of Advocate General Jääskinen in Génesis (C‑190/10, EU:C:2011:202, point 29).
(
24
)	The Court of Justice has previously held that ‘there is no public interest in conferring the benefit of the full protection envisaged by [what is now the 2009 EUTMR] on a trade mark which does not fulfil its essential function, namely that of ensuring that the consumer or the end user can identify the origin of the product or service concerned by allowing him [or her] to distinguish that product or service from those emanating from a different origin, without any risk of confusion’ (see judgment of 29 April 2004, Henkel v OHIM, C‑456/01 P and C‑457/01 P, EU:C:2004:258, paragraph 48). See also, along the same lines, judgment of 12 June 2019, Hansson (C‑705/17, EU:C:2019:481, paragraph 31 and the case-law cited).
(
25
)	Without wanting to prejudice the Court of Justice’s position in Case C‑751/22 P, Shopify v EUIPO, the same logic appears to me to be valid also in invalidity proceedings based on Article 53(1)(c) of the 2009 EUTMR.
(
26
)	Judgment under appeal, paragraph 41.
(
27
)	See judgment of 29 March 2011, Anheuser-Busch v Budějovický Budvar (C‑96/09 P, EU:C:2011:189, paragraph 94) (explaining that ‘if an opponent is to be able, on the basis of Article 8(4) of Regulation No 40/94, to prevent registration of a Community trade mark, it is necessary – and sufficient – that, at the date on which [EUIPO] determines whether all the conditions for opposition are met, an earlier right may be claimed which has not been declared invalid by a judicial decision that has become final’).
(
28
)	Indeed, the danger would otherwise be that EUIPO be given a carte blanche to ignore all developments that happen after the point at which an application for an EU trade mark is opposed in spite of the requirements arising from Rule 19(1) and (2) of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1) and Article 7(2)(d) of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation 2017/1001, and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104, p. 1).
(
29
)	See, ex multis, judgments of 8 May 2014, Bimbo v OHIM (C‑591/12 P, EU:C:2014:305, paragraph 12), and of 18 June 2020, Primart v EUIPO (C‑702/18 P, EU:C:2020:489, paragraph 2), cited by the General Court in paragraph 18 of the judgment under appeal (finding that the filing date is determinative for the purposes of identifying the applicable substantive law and the applicable procedural rules).
(
30
)	See, in that regard, judgments of 29 March 2011, Anheuser-Busch v Budějovický Budvar (C‑96/09 P, EU:C:2011:189, paragraphs 166 and 167); of 22 March 2012, Génesis (C‑190/10, EU:C:2012:157, paragraph 50); and of 21 February 2013, Fédération Cynologique Internationale (C‑561/11, EU:C:2013:91, paragraph 40) (all finding that the date of priority is the date of filing an EU trade mark application or the date of the priority claimed for the applicable mark).
(
31
)	For the sake of completeness, it may be highlighted that Article 54(1) of the Withdrawal Agreement, which, pursuant to Article 185 thereof, regulates the role of EU trade marks from the end of the transition period, lays down that from that moment the holder of an EU trade mark automatically becomes the holder of a comparable registered and enforceable right in the United Kingdom. There are, however, no similar arrangements as regards earlier UK rights in the European Union.