The first subparagraph of Rule 50(1) of the Implementing Regulation provides that, unless otherwise provided, the provisions relating to proceedings before the department which made the contested decision are to be applicable to appeal proceedings mutatis mutandis.

However, as regards the submission of proof of genuine use of the earlier mark pursuant to Article 57(2) or (3) of Regulation No 207/2009, in the context of invalidity proceedings brought on the basis of Article 53(1)(a) of that regulation, Rule 40(6) of the Implementing Regulation provides that the European Union Intellectual Property Office (EUIPO) is to invite the proprietor of the earlier mark to prove the use of that mark during a period which it is to specify.

Although it follows from the wording of that rule that, when no proof of use of the mark concerned is produced within the time limit set by EUIPO, the application for a declaration of invalidity must be rejected by EUIPO of its own motion, such a conclusion does not, however, pertain where some evidence intended to show that use has been produced within that time limit.

In such a case, and unless it emerges that that evidence is entirely irrelevant for the purpose of establishing genuine use of the earlier mark in question, the proceedings must take their course. EUIPO must, inter alia, as provided for by Article 57(1) of Regulation No 207/2009, invite the parties, as often as necessary, to file observations on communications from the other parties or issued by EUIPO itself. In such a context, if the application for a declaration of invalidity is rejected on the ground that the earlier mark concerned was not subject to genuine use, that rejection does not proceed from application of Rule 40(6) of the Implementing Regulation, an essentially procedural provision, but solely from application of the substantive provisions in Article 57(2) or (3) of Regulation No 207/2009.

It follows therefrom that it remains possible to submit evidence of use of the mark in addition to the evidence adduced within the time period set by EUIPO under Rule 40(6) of the Implementing Regulation and that EUIPO is in no way prohibited from taking account of additional evidence which is submitted after that time under the discretion conferred upon it under Article 76(2) of Regulation No 207/2009.

Accordingly, Rule 40(6) of the Implementing Regulation does not, contrary to the appellant's submissions, constitute a provision contrary to Article 76(2) of Regulation No 207/2009, with the result that the Board of Appeal is not entitled to take account of additional evidence of use of the earlier mark in question produced by the applicant for a declaration of invalidity in support of its action before it.

As regards the appeal procedure, the Court has already held that it follows from Article 63(2) of Regulation No 207/2009, read in conjunction with Article 76(2) of that regulation, that, for the purposes of the examination of the merits of the appeal brought before it, the Board of Appeal is not only to invite the parties, as often as necessary, to file, within time limits which it sets, observations on notifications which it has sent to them, but may also decide on measures of inquiry, including the production of facts or evidence. In turn, such provisions demonstrate the possibility of seeing the underlying facts of a dispute multiply at various stages of the proceedings before EUIPO.

Under the third subparagraph of Rule 50(1), where the appeal is directed against a decision of an Opposition Division, the Board of Appeal must limit its examination of the appeal to facts and evidence presented within the time limits set or specified by the Opposition Division, unless the Board considers that additional or supplementary facts and evidence must be taken into account pursuant to Article 76(2) of Regulation No 207/2009.

Thus, the Implementing Regulation expressly provides that the Board of Appeal enjoys, when examining an appeal directed against a decision of the Opposition Division, the discretion deriving from the third subparagraph of Rule 50(1) of that regulation and from Article 76(2) of Regulation No 207/2009 to decide whether or not to take into account additional or supplementary facts and evidence which were not presented within the time limits set or specified by the Opposition Division.

However, it cannot be inferred therefrom, a contrario, that during the examination of an appeal against a decision of a Cancellation Division, the Board of Appeal does not have such discretion. The third subparagraph of Rule 50(1) of the Implementing Regulation is merely the expression, as regards the examination of an appeal against a decision of an Opposition Division, of the principle flowing from Article 76(2) of Regulation No 207/2009, which constitutes the legal basis for Rule 50 and contains a rule which applies horizontally within the scheme of that regulation, which, accordingly, applies irrespective of the nature of the proceedings concerned.

(see paras 51-57, 59-61)