9

The background to the dispute was set out by the General Court in paragraphs 1 to 16 of the judgment under appeal in the following terms: ‘1 On 17 March 2006, Bariatrix Europe Inc. SAS filed an application for registration of a Community trade mark with [OHIM] pursuant to … Regulation … No 40/94 … 2 The mark for which registration was sought is the word sign PROTI SNACK. 3 The goods in respect of which registration was sought are in, inter alia, Classes 5, 29 and 32 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended ... ... 5 On 9 March 2007, Mr … Rintisch … filed a notice of opposition under Article 42 of Regulation No 40/94 … against registration of the mark applied for in respect of the goods referred to in paragraph 3 above. 6 The opposition was based, inter alia, on the following earlier rights: — German word mark PROTIPLUS, filed on 4 December 1995 and registered on 20 May 1996, under number 39549559, in respect of goods in Classes 29 and 32; — German word mark PROTI, filed on 22 January 1997 and registered on 3 March 1997, under number 39702429, in respect of goods in Classes 29 and 32; — German figurative mark … filed on 24 February 1996 and registered on 5 March 1997, under number 39608644, in respect of goods in Classes 29 and 32 … ... 8 In order to prove the existence and the validity of the earlier marks referred to in paragraph 6 above, [Mr Rintisch] annexed to the notice of opposition (i) registration certificates issued by the Deutsches Patent- und Markenamt (German Patent and Trade Mark Office), dated March 1996, October 1996 and March 1997 respectively, and (ii) extracts from the Deutsches Patent- und Markenamt online register, dated 8 January 2007, which, for each of the earlier marks, contained the words “Marke eingetragen” (“registered mark”) under the heading “Letzter Verfahrensstand” (latest procedural stage), and, for the earlier marks Nos 39549559 and 39608644, dates in 2006 under the heading “Verlängerungsdatum” (renewal date). A translation into the language of the proceedings was provided only for the registration certificate for each of the earlier marks. 9 On 26 April 2007, OHIM communicated to [Mr Rintisch] the date of the commencement of the adversarial stage of the opposition proceedings … In that communication, OHIM advised [Mr Rintisch] that a renewal certificate had to be provided for marks whose registration was more than 10 years old. Similarly, OHIM stated that the existence and the validity of the earlier marks relied on in support of the opposition had to be proved by official documents translated into the language of the proceedings. In that respect, OHIM set a time-limit of 27 August 2007 for the submission of evidence. Lastly, OHIM advised [Mr Rintisch] that, if the evidence for the existence and the validity of the earlier marks was not filed within the required time-limit, the opposition would be rejected without any examination as to its merits, in accordance with Rule 20(1) of [the Implementing Regulation]. 10 On 25 September 2007, [Mr Rintisch] submitted to OHIM, for each of the earlier marks, an extract from the online register and a declaration from the Deutsches Patent- und Markenamt, together with a translation of that declaration into the language of the proceedings. The declaration stated that the earlier marks had been renewed, before the date on which the notice of opposition was filed, until 2015, 2016 and 2017 respectively. 11 On 31 March 2008, the Opposition Division rejected the opposition on the ground that [Mr Rintisch] had failed to prove, within the time-limit set, the existence and the validity of the earlier marks relied on in support of the opposition. First of all, the Opposition Division found that, although it could be considered, on the basis of the certificates annexed to the notice of opposition of 9 March 2007, that the earlier marks had been registered in 1995, 1996 and 1997 respectively, that was not sufficient to establish that they were valid as at 27 August 2007 ... In addition, the Opposition Division found that, in accordance with Rule 19(4) of [the Implementing Regulation], the online extracts, dated 8 January 2007, could not be taken into account for the purposes of proving that the earlier marks had been renewed, since they had not been translated into the language of the proceedings. Lastly, as regards the documents submitted on 25 September 2007, the Opposition Division refused to take them into account, on the basis of Rule 20(1) of [the Implementing Regulation], because they had been submitted late. 12 On 8 May 2008, [Mr Rintisch] filed a notice of appeal with OHIM against the Opposition Division’s [decision], pursuant to Articles 57 to 62 of Regulation No 40/94 … In the appeal, [Mr Rintisch] requested that the Board of Appeal refuse to register the mark applied for on the basis that there was a likelihood of confusion. To that end, he included as an annex to the written pleading setting out the grounds of the appeal the documents filed with the Opposition Division on 25 September 2007. 13 By [the contested decision], the Fourth Board of Appeal of OHIM dismissed the appeal without assessing the merits of the opposition. It found that the Opposition Division had been correct to conclude that the [appellant] had not duly substantiated, within the time-limits laid down, the existence and the validity of the earlier marks relied on in support of the opposition. 14 In particular, the Board of Appeal considered, first, that the registration certificates annexed to the notice of opposition of 9 March 2007 were not sufficient to prove that the earlier marks were still in force at the date on which the notice of opposition was filed. Second, it found that the fact that the online extracts from the register, dated 8 January 2007, had not been translated was sufficient justification in itself for refusing to take them into account. 15 The Board of Appeal also found that the documents submitted on 25 September 2007 could not be taken into account, on the ground that they had been filed after the expiry of the time-limit set by OHIM, that is, after 27 August 2007. 16 Lastly, the Board of Appeal stated that neither the Opposition Division nor the Board of Appeal itself had discretion under Article 74(2) of Regulation No 40/94 … to take into account documents that had not been filed before expiry of the time-limit set by OHIM, having regard to Rule 20(1) of [the Implementing Regulation] which provides expressly that an action must be dismissed where documentary evidence is submitted late. The Board of Appeal further stated that, in any event, even if it were to be held that it enjoyed a discretion to accept documents filed late with the Opposition Division, the Board would have exercised such a discretion against [Mr Rintisch] ...’