7

The General Court set out the background to the dispute as follows in paragraphs 1 to 12 of the judgment under appeal: ‘1 On 26 June 2009, pursuant to … Regulation … No 207/2009 …, the applicant, [Repower], obtained from [EUIPO] protection in the European Union for international registration No 1020351 of the word mark REPOWER. … 3 On 3 June 2013, the intervener, repowermap.org, filed an application for a declaration of invalidity of the contested mark … The intervener claimed that the contested mark was descriptive and devoid of distinctive character in respect of all the goods and services covered by the mark. 4 On 9 July 2014, the Cancellation Division [partially] upheld the application for a declaration of invalidity … … 6 On 8 September 2014, the intervener filed a notice of appeal at EUIPO, pursuant to Articles 58 to 64 of Regulation No 207/2009 …, against the decision of the Cancellation Division. 7 By decision of 8 February 2016 (“the decision of 8 February 2016”), the Fifth Board of Appeal of EUIPO dismissed the appeal. … 8 By application lodged at the Court Registry on 26 April 2016, the intervener brought an action against the decision of 8 February 2016. The case was registered under number T‑188/16. 9 By a communication of 22 June 2016, the Fifth Board of Appeal informed the parties that, further to an action being brought before the Court in Case T‑188/16, repowermap v EUIPO – Repower (REPOWER), it had found that the decision of 8 February 2016 contained an inadequate statement of reasons for the purposes of Article 75 of Regulation No 207/2009 … The Board of Appeal explained that, because of the inadequate statement of reasons, and pursuant to Article 80 of Regulation No 207/2009 …, it considered it appropriate to revoke the decision of 8 February 2016 and carry out a detailed analysis of the distinctive and descriptive characters of the contested mark with regard to the goods and services covered by that sign. It invited the parties to submit observations on its intention to revoke the decision of 8 February 2016. 10 The applicant submitted its observations on 5 July 2016. It maintained, in essence, that, until such time as the operative part of the decision of 8 February 2016 was amended, it was possible to substantiate the reasons for it, in accordance with the conditions in Article 83 of Regulation No 207/2009 … However, the applicant considered that it was not possible to revoke the decision of 8 February 2016 on the basis of Article 80 of Regulation No 207/2009, which did not exist, or no longer existed, in the consolidated version of Regulation No 207/2009 published online in the EUR-Lex database, since that article conferred power only on the examiners of EUIPO and since an inadequate statement of reasons did not amount to a procedural error for the purposes of Article 80 of Regulation No 207/2009. Finally, the applicant claimed that it was apparent from the decision of the Grand Board of Appeal of EUIPO of 28 April 2009 (Case R 323/2008-G) (“the decision of the Grand Board of Appeal”) that a decision of EUIPO against which an appeal was pending before the General Court could not be revoked. 11 The intervener submitted its observations on 20 July 2016. It observed that, as Article 80 of Regulation No 207/2009 was a specific rule, it applied instead of the general principles to which Article 83 of Regulation No 207/2009 referred. The intervener also observed that whether or not an inadequate statement of reasons amounted to a procedural error was uncertain and that there was a significant probability that a revocation of the decision of 8 February 2016 on the grounds of an inadequate statement of reason was not allowed. The intervener’s opinion was that, in view of those circumstances, it was preferable to continue proceedings before the Court in Case T‑188/16, repowermap v EUIPO – Repower (REPOWER). 12 By [the contested] decision …, the Fifth Board of Appeal of EUIPO revoked the decision of 8 February 2016. The Board explained that, despite the doubts expressed by the parties on the matter, Article 80 of Regulation No 207/2009 remained applicable after Regulation 2015/2424 came into force. In addition, the Board commented that EUIPO had an obligation to provide reasons for its decisions and, in particular, to analyse the grounds for refusal in relation to the goods and services in question, meaning that an inadequate statement of reasons, as contained in the decision of 8 February 2016, was an obvious procedural error for the purposes of Article 80 of Regulation No 207/2009 and needed to be corrected.’