Even if, in the context of invalidity proceedings based on absolute grounds for invalidity, no time limit is set by which to apply for the cancellation of the registration of a mark — unlike what is laid down in Article 41 of Regulation No 207/2009, on opposition to the registration of a trade mark on relative grounds for refusal, which states that the time limit for opposition shall be three months — a time limit is nevertheless set for the submission of evidence in the context of the application for a declaration of invalidity or may be set by EUIPO, by virtue of its competence to organise the procedure.

According to Article 52 of Regulation No 207/2009 on the European Union trade mark, after the registration of a mark as an EU trade mark, that trade mark may be declared invalid on application to the European Union Intellectual Property Office (EUIPO) in certain circumstances and, in particular, where that trade mark has been registered contrary to the provisions of Article 7 of that regulation. That application, in accordance with Rule 37(b)(iv) of Regulation No 2868/95 implementing Regulation No 40/94 on the Community trade mark, must contain the facts, evidence and arguments submitted in support of the application. Furthermore, in accordance with Articles 57 and 78 of Regulation No 207/2009, during the course of such proceedings, EUIPO is to invite the parties, as often as necessary, to file, within the prescribed time limits, their observations and may also decide on measures of inquiry, including the production of matters of fact or evidence.

It follows from case-law that no reason of principle relating to the nature of the proceedings under way before the Board of Appeal or to the jurisdiction of that department precludes it, for the purpose of deciding on the appeal before it, from taking into account facts and evidence produced for the first time at the appeal stage.

Indeed, it follows from Article 64(1) of Regulation No 207/2009 on the European Union trade mark that, through the effect of the appeal brought before it, the Board of Appeal may exercise any power within the competence of the department which was responsible for the contested decision and is therefore called upon, in this respect, to conduct a new, full examination as to the merits of the appeal, in terms of both law and fact.

As follows from Articles 63 and 78 of Regulation No 207/2009, for the purposes of the examination as to the merits of the appeal brought before it, the Board of Appeal is to invite the parties, as often as necessary, to file observations, within a period to be fixed by the Board, on communications from the other parties or issued by itself and may also decide on measures of inquiry, including the production of factual or evidential material. Such provisions demonstrate the possibility of seeing the underlying facts of a dispute multiply at various stages of the proceedings before the European Union Intellectual Property Office (EUIPO).

It is true that, in paragraphs 60 and 61 of the judgment of 13 March 2007, OHIM v Kaul, the Court found that Article 59 of Regulation No 40/94 on the Community trade mark, which is identical in content to that of Article 60 of Regulation No 207/2009, which lays down the conditions for bringing an appeal before the Board of Appeal, refers not to the submission of facts or evidence, but only to the filing, within a time limit of four months, of a written statement setting out the grounds of appeal and therefore cannot be interpreted as giving the person bringing the appeal a new time limit for submitting facts and evidence in support of his opposition.

However, it cannot be inferred from the judgment of 13 March 2007, OHIM v Kaul that all the evidence adduced before the Board of Appeal must be regarded as belated in all circumstances.

First, it is clear that the case that gave rise to the judgment of 13 March 2007, OHIM v Kaul, concerned proceedings for opposition to registration of a trade mark. In accordance with the third subparagraph of Rule 50(1) of Regulation No 2868/95 implementing Regulation No 40/94 on the Community trade mark, where an appeal is directed against a decision of an Opposition Division, the Board of Appeal is to limit its examination of the appeal to facts and evidence presented within the time limits set or specified by the Opposition Division. Therefore, in that context, the evidence submitted before the Board of Appeal is regarded as being belated but may, nevertheless, be taken into account, where appropriate, pursuant to Article 76(2) of Regulation No 207/2009.

Second, without prejudice to the special rule applicable to opposition proceedings referred to in the third subparagraph of Rule 50(1) of Regulation No 2868/95, it is always possible to submit evidence in time for the first time before the Board of Appeal in so far as such evidence is intended to challenge the reasons given by the Cancellation Division in the contested decision. That evidence is, therefore, either evidence supplementary to that submitted in the proceedings before the Cancellation Division or evidence on a new matter which could not be raised during those proceedings.

Moreover, it should be noted that it is for the party presenting the evidence for the first time before the Board of Appeal to justify why that evidence is being submitted at that stage of the proceedings and demonstrate that submission during the proceedings before the Cancellation Division was impossible.

Finally, the evidence submitted for the first time before the Board of Appeal may be delivered to it on its request, as measures of inquiry and within the time limits imposed on the parties.

(see paras 36-44)