It follows from Regulation No 207/2009 on the European Union trade mark, and, in particular, Title IV thereof, relating to the procedure for registration of an EU trade mark, that the European Union Intellectual Property Office has exclusive jurisdiction over registration and opposition to such registration of an EU trade mark. EUIPO is the only body empowered by the Union legislature to examine registration applications and, accordingly, authorise or refuse registration of an EU trade mark. The absence of provisions laying down that EUIPO’s adjudicating bodies, when exercising their competence concerning the registration of an EU trade mark or the opposition to such registration, are bound by a final decision of an EU trade mark court is therefore the consequence of the exclusive nature of EUIPO’s competence in that area.

In addition, in order to ensure both stability of the law and legal relations and the sound administration of justice, it is important that decisions of courts or tribunals which have become definitive after all rights of appeal have been exhausted or after expiry of the time limits provided for in that connection can no longer be called into question. In that regard, although Regulation No 207/2009 does not explicitly define the concept of ‘res judicata’, it follows, in particular, from Article 56(3) and Article 100(2) of that regulation that, in order that decisions of a court of a Member State or EUIPO which have become final are res judicata and can therefore be binding on such a court or EUIPO, it is required that parallel proceedings before them have the same parties, the same subject matter and the same cause of action.

As regards the proceedings launched by the infringement action before a national court acting as an EU trade marks court and the opposition proceedings to registration of an EU mark before EUIPO, it must be stated that the subject matter of those proceedings is distinct.

As regards, first, the registration of a mark as an EU trade mark, its purpose is, as is clear from Article 6 of Regulation No 207/2009, to obtain such an EU trade mark. Accordingly, the opposition to such registration is intended to prevent the applicant for that registration from obtaining the mark in question. In that regard, in accordance with Article 42(5) of that regulation, following the examination of the opposition to the registration, either the application for registration of the mark is refused in respect of all or part of the goods or services for which that mark is sought, or the opposition is rejected.

As regards, second, the infringement action brought before a national court acting as an EU trade marks court, the proprietor of the earlier EU trade mark asks, in the context of such an action, that court to prohibit the use of a sign creating a likelihood of confusion with that of the earlier EU trade mark. The proprietor of the EU trade mark accordingly seeks to render the infringer liable for infringement of its exclusive rights.

Moreover, it is necessary to distinguish between the subject matter of infringement proceedings, actions for a declaration of invalidity and proceedings concerning registration, under Regulation No 207/2009, to the effect that the possibility for the proprietor of an earlier EU trade mark to bring infringement proceedings against the proprietor of a later registered EU trade mark cannot render either the bringing of an application for a declaration of invalidity before EUIPO or the mechanisms for prior control available under the procedure for registering EU trade marks devoid of all purpose. In the light of the exclusive competence of EUIPO’s adjudicating bodies to authorise or refuse the registration of an EU trade mark, the subject matter of any proceedings before EUIPO relating to registration of an EU trade mark or opposition to that registration necessarily is different to any proceedings before a national court, even where that court acts as an EU trade marks court.

(see paras 50-53, 56, 58, 61-63)