10

Having noted, at paragraphs 23 and 24 of the judgment under appeal, referring to the judgment in Case C-29/05 P OHIM v Kaul [2007] ECR I-2213, paragraph 42, that, it can be inferred from the wording of Article 76(2) of Regulation No 207/2009 that, as a general rule and unless otherwise specified, the submission of facts and evidence by the parties remains possible after the expiry of the periods governing such submission provided for in Regulation No 207/2009 and that OHIM is in no way prohibited from taking account of facts and evidence submitted late, the General Court rejected the plea thus put forward by New Yorker Jeans finding, in essence, as follows at paragraphs 25 to 34 of the judgment under appeal: ‘25 Rule 22(2) of Regulation No 2868/95 provides that, where, pursuant to Article 42(2) or (3) of Regulation No 207/2009, the opposing party is required to furnish proof of genuine use of the earlier mark, OHIM is to invite that party to provide the proof required within such period as it specifies. The second sentence of Rule 22(2) adds that, if the opposing party does not provide such proof before that period expires, OHIM is to reject the opposition. 26 It follows from that second sentence that submission of proof of use of the earlier mark after the period fixed for that purpose has expired means, in principle, that the opposition will be rejected, without OHIM having any discretion in that regard. … … 30 … [T]he view must be taken that, by having filed within the time limit, namely on 6 June 2006, relevant evidence such as an affidavit, invoices and photographs, [Vallis K.-Vallis A.] must be regarded as having complied with the time limit provided for in the second sentence of Rule 22(2) of Regulation No 2868/95. Furthermore, it is not in dispute that, following the applicant’s observations that that evidence was insufficient, OHIM provided [Vallis K.-Vallis A.] with the opportunity to file its observations by 14 January 2007. In that context, the evidence filed with [Vallis K.-Vallis A.’s] observations in compliance with that time limit was capable of being taken into account by the Opposition Division. 31 Rule 22(2) of Regulation No 2868/95 must be understood as meaning that nothing precludes additional evidence, which merely adds to other evidence submitted within the time limit set, from being taken into account, since the initial evidence is not irrelevant, but was challenged by the other party as being insufficient. Such a consideration, which in no way renders the above rule superfluous, is all the more valid since [Vallis K.-Vallis A.] did not abuse the time limits set by knowingly employing delaying tactics or by demonstrating manifest negligence. … 33 In the present case, since the evidence submitted by [Vallis K.-Vallis A.] outside the time limit set by the Opposition Division was not the initial and only proof of use, but rather evidence additional to relevant proof which was submitted within the time limit, the fact that the applicant disputed that evidence was sufficient to justify production by [Vallis K.-Vallis A.] of additional evidence when it filed its observations. The fact that that evidence was taken into consideration made it possible for the Opposition Division and then the Board of Appeal to decide on the genuine use of the earlier mark on the basis of all the relevant facts and evidence. 34 … [T]he conclusion that the Opposition Division was entirely correct to take account of the catalogues, filed before it on 15 January 2007, also appears to comply with the more general objective underlying the opposition proceedings, in the context of which Article 76(2) of Regulation No 207/2009 has been interpreted as meaning that even evidence which had been submitted out of time must be taken into consideration provided that it appears to be relevant and that the stage of the proceedings at which it is filed and the surrounding circumstances do not preclude its submission.’