JUDGMENT OF THE GENERAL COURT (Sixth Chamber)

28 September 2016 ( *1 )

‛EU trade mark — Invalidity proceedings — EU word mark FITNESS — Absolute grounds for refusal — No distinctive character — Descriptive character — Article 7(1)(b) and (c), Article 52(1)(a) and Article 76 of Regulation (EC) No 207/2009 — Rule 37(b)(iv) and Rule 50(1) of Regulation (EC) No 2868/95 — Production of evidence for the first time before the Board of Appeal’

In Case T‑476/15,

European Food SA, established in Drăgănești (Romania), represented by I. Speciac, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by M. Rajh, acting as Agent,

defendant,

the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being

Société des produits Nestlé SA, established in Vevey (Switzerland), represented by A. Jaeger-Lenz, A. Lambrecht and S. Cobet-Nüse, lawyers,

ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 19 June 2015 (Case R 2542/2013-4), relating to invalidity proceedings between European Food and Société des produits Nestlé,

THE GENERAL COURT (Sixth Chamber),

composed, at the time of deliberation, of S. Frimodt Nielsen, President, A.M. Collins (Rapporteur) and V. Valančius, Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Court Registry on 19 August 2015,

having regard to the response of EUIPO lodged at the Court Registry on 27 November 2015,

having regard to the response of the intervener lodged at the Court Registry on 26 November 2015,

having regard to the fact that no request for a hearing was submitted by the main parties within the period of three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

gives the following

Judgment

Background to the dispute

1 On 20 November 2001, the intervener, Société des produits Nestlé SA, filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1).

2 Registration as a mark was sought for the word sign FITNESS.

3 The goods in respect of which registration was sought are in Classes 29, 30 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, and correspond, for each of those classes, to the following description: — Class 29: ‘Milk, cream, butter, cheese, yoghurts and other milk-based food preparations, substitutes for dairy products, eggs, jellies, fruit, vegetables, protein preparations for human consumption’; — Class 30: ‘Cereals and cereal preparations; ready-to-eat cereals; breakfast cereals; foodstuffs based on rice or flour’; — Class 32: ‘Still water, aerated or carbonated water, spring water, mineral water, flavoured water, fruit drinks, fruit juices, nectars, lemonades, sodas and other non-alcoholic drinks, syrups and other preparations for making syrups and other preparations for making beverages’.

4 On 30 May 2005, the mark applied for was registered as an EU trade mark under number 2470326 in respect of the goods referred to in paragraph 3 above (‘the contested mark’).

5 On 2 September 2011, the applicant, European Food SA, filed an application for a declaration that the contested mark was invalid under Article 52(1)(a) of Regulation No 207/2009, read in conjunction with Article 7(1)(b) and (c) of that regulation.

6 On 18 October 2013, the Cancellation Division rejected the application for a declaration of invalidity in its entirety.

7 On 16 December 2013, the applicant filed a notice of appeal with EUIPO against the decision of the Cancellation Division.

8 By decision of 19 June 2015 (‘the contested decision’), the Fourth Board of Appeal of EUIPO dismissed that appeal.

9 The Board of Appeal held that, in cancellation proceedings, the burden of proving that the contested mark was devoid of any distinctive character or was descriptive, for the purposes of Article 7(1)(b) and (c) of Regulation No 207/2009 lay on the cancellation applicant. It added that the relevant point in time to which the evidence had to refer was the date of filing of the contested mark, namely 20 November 2001. In addition, the Board of Appeal found that since the goods in question were low priced mass consumption goods, the attentiveness of the relevant public was below average.

10 As regards the alleged descriptiveness [of the contested mark], the Board of Appeal found that most of the evidence produced before the Cancellation Division post-dated the relevant point in time or concerned the territory of Romania before its accession to the European Union. As regards the copies from dictionaries concerning the term ‘fitness’, it found that that term did not designate an inherent characteristic of the goods concerned in the eyes of consumers in 2001. It considered that, in relation to the goods in question, that term was suggestive and ‘a vague evocation’. Therefore, according to the Board of Appeal, the evidence produced before the Cancellation Division was not sufficient to prove the descriptiveness of the contested mark.

11 Moreover, the Board of Appeal rejected as being belated, without taking it into consideration, some further evidence submitted for the first time before the Board of Appeal. It applied by analogy the third subparagraph of Rule 50(1) of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1), read in conjunction with Rule 37(b)(iv) of that regulation.

12 The Board of Appeal also found that since the term ‘fitness’ had an evocative and ambiguous content, it was capable of identifying the goods covered by the contested mark as coming from the intervener and therefore of distinguishing them from those of other undertakings. Therefore, it concluded that the applicant had not established that that mark lacked distinctive character.

Forms of order sought

13 The applicant claims that the Court should: — annul the contested decision; — as a subsidiary claim, alter the contested decision and cancel the contested mark; — order EUIPO to pay the costs.

14 EUIPO contends that the Court should: — dismiss the action as in part inadmissible and in part unfounded; — order the applicant to pay the costs.

15 The intervener contends that the Court should: — dismiss the action as inadmissible or, in the alternative, as unfounded; — order the applicant to pay the costs.

Law

Admissibility

16 Under Article 173(3) of the Rules of Procedure of the General Court, the intervener referred to in Article 173(1) and (2) of those rules has the same procedural rights as the main parties. He may support the form of order sought by a main party and may apply for a form of order and put forward pleas in law independently of those applied for and put forward by the main parties.

17 The intervener disputes the formal admissibility of the action, relying on infringement of Article 177 of the Rules of Procedure. It contends that the applicant did not provide proof of its existence in law, nor did it provide a validly given authority to its lawyers to act.

18 As regards proof of existence in law, suffice it to state that the applicant provided, with the application, an extract from the register of companies, as is required by Article 177(4) of the Rules of Procedure. That provision does not require that the extract contain a series of particulars, contrary to what is suggested by the intervener.

19 As regards the authority to act, it must be pointed out that, first, Article 51(3) of the Rules of Procedure applicable in the present case, by contrast with Article 44(5)(b) of the Rules of Procedure of the General Court of 2 May 1991, no longer requires proof that the authority granted to the lawyer was conferred on him by someone authorised for the purpose. Second, contrary to what the intervener contends, the authority to act clearly designates by name as a lawyer the person who signed the application, namely I. Speciac. Third, as regards the fact that the applicant did not update the schedule of annexes in order to include the authority to act, suffice it to point out that a possible contravention of point 97 of the Practice Rules for the Implementation of the Rules of Procedure of the General Court of 20 May 2015 (OJ 2015 L 152, p. 1) does not render the action inadmissible. Fourth, contrary to what the intervener contends, the Rules of Procedure do not state that proof of the conferral of the authority to act on the lawyer who signs the application must be established before the lodging of the application. On the contrary, since that irregularity may be corrected under Article 51(4) of the Rules of Procedure, nothing precludes the document attesting to the existence of the authority to act being drawn up on a date subsequent to the lodging of the application (see, to that effect, judgment of 4 February 2015, KSR v OHIM — Lampenwelt (Moon), T‑374/13, not published, EU:T:2015:69, paragraphs 11 to 13).

20 In the light of the foregoing, the intervener’s arguments as to the formal inadmissibility of the action must be rejected.

Substance

21 In support of the action, the applicant puts forward three pleas in law, the first relating to the refusal to take account of the evidence submitted for the first time before the Board of Appeal; the second relating to the descriptiveness of the contested mark; and the third relating to the lack of distinctive character of that mark.

First plea in law, relating to the refusal to take account of the evidence submitted for the first time before the Board of Appeal

– Arguments of the parties

22 By its first plea in law, the applicant claims that, in refusing to take account of the evidence submitted for the first time before the Board of Appeal, EUIPO infringed Article 76 of Regulation No 207/2009, read in conjunction with Rule 37(b)(iv) and Rule 50(1) of Regulation No 2868/95.

23 First, the applicant submits that, under Article 76 of Regulation No 207/2009, in cases concerning absolute grounds for invalidity, EUIPO has an obligation to examine the facts of its own motion. According to the applicant, in this case EUIPO not only failed to carry out such an examination of its own motion, but it also refused, wrongly, to take into consideration the evidence it had submitted.

24 Second, the applicant submits that Rule 37(b)(iv) of Regulation No 2868/95 does not preclude the applicant for a declaration of invalidity filing additional evidence before the Board of Appeal.

25 Third, the applicant submits that it is clear from the wording of the third subparagraph of Rule 50(1) of Regulation No 2868/95 that that provision concerns opposition proceedings. In the alternative, even if that provision were applicable in the present case, the applicant submits that EUIPO ought to have taken into consideration the evidence in question, since it was supplementary to the evidence already filed with the Cancellation Division.

26 According to EUIPO, the third subparagraph of Rule 50(1) of Regulation No 2868/95 establishes that the Board of Appeal is to limit its examination of the appeal to facts and evidence presented within the time limits set at first instance. Under that provision, the Board of Appeal has a discretion to decide whether to take account of additional or supplementary facts and evidence which were not presented within the time limits set or specified by the Opposition Division.

27 EUIPO states, in addition, that the third subparagraph of Rule 50(1) of Regulation No 2868/95 is not a derogation from Article 76(2) of Regulation No 207/2009, under which it has a discretion to accept or disregard evidence that has not been submitted in due time. Therefore, the parties do not have an unconditional right to have facts or evidence submitted out of time taken into consideration by EUIPO.

28 In the present case, the Board of Appeal considered, in the exercise of its discretion, that the evidence submitted outside the time limit indicated by Rule 37(b)(iv) of Regulation No 2868/95 could not be taken into account. EUIPO states that the evidence in question involved, for the first time, evidence relating to the relevant point in time, namely the date on which the application for registration was filed. Moreover, it contends that since the bringing of cancellation proceedings is not subject to a deadline, the applicant had time to collect relevant evidence and submit it before the Cancellation Division. It adds that the applicant has not indicated why the evidence in question could be filed only at the stage of the appeal before the Board of Appeal.

29 Lastly, EUIPO states that, in invalidity proceedings, even when these relate to absolute grounds for invalidity, it is not obliged to examine the facts of its own motion.

30 The intervener contends, first, that Rule 37(b)(iv) of Regulation No 2868/95 requires the applicant for a declaration of invalidity to submit the evidence in support of the grounds for invalidity relied on at the time of the initial application for a declaration of invalidity. Next, it submits that the obligation on EUIPO to examine the facts of its own motion under Article 76(1) of Regulation No 207/2009 applies to the procedure for registration and not to invalidity proceedings. Lastly, it submits that the Board of Appeal was fully entitled, in the exercise of its discretion under Article 76(2) of Regulation No 207/2009 and the third subparagraph of Rule 50(1) of Regulation No 2868/95, to reject the belated evidence in question.

– Findings of the Court

32 Article 7(1)(b) of Regulation No 207/2009 pursues the public interest of guaranteeing to the consumer the identity of the origin of the goods or services covered by the mark by enabling him, without any possibility of confusion, to distinguish those goods or services from others which have another origin (see, to that effect, judgments of 29 April 2004, Henkel v OHIM, C‑456/01 P and C‑457/01 P, EU:C:2004:258, paragraph 48, and 14 July 2014, NIIT Insurance Technologies v OHIM (SUBSCRIBE), T‑404/13, not published, EU:T:2014:645, paragraph 57).

33 Article 7(1)(c) of Regulation No 207/2009 seeks to ensure that signs that are descriptive of one or more characteristics of the goods or services in respect of which registration as a mark is sought may be freely used by all traders offering such goods or services (judgments of 10 July 2014, BSH v OHIM, C‑126/13 P, not published, EU:C:2014:2065, paragraph 19; 12 April 2011, Euro-Information v OHIM (EURO AUTOMATIC PAYMENT), T‑28/10, EU:T:2011:158, paragraph 44; and 12 April 2016, Choice v EUIPO (Choice chocolate & ice cream), T‑361/15, not published, EU:T:2016:214, paragraph 13). Indeed, the registration as a mark of a descriptive sign would be incompatible with a system of undistorted competition, in particular, because it could have the effect of creating an unjustified competitive advantage for a single trader.

34 As regards the relative grounds for refusal set out in Article 8 of Regulation No 207/2009, it is clear from the scheme of that regulation and from the wording of that provision that Article 8 seeks to resolve possible conflicts between a mark for which registration is sought and the rights of the proprietor of an earlier trade mark, for example where the marks and the products in question are identical or where they are similar and there exists a likelihood of confusion. Therefore, the interest the protection of which can be sought under that provision is above all of a private nature, even if it simultaneously protects a certain public interest such as avoiding the likelihood of confusion on the part of consumers.

35 These findings have the following four consequences.

36 In the first place, even if third parties may submit written observations to EUIPO concerning the grounds on which the mark ought not to be registered ex officio under Article 7 of Regulation No 207/2009, Article 40 of that regulation states that they are not to be parties to the proceedings before EUIPO. By contrast, it is apparent from Articles 41 and 42 of that regulation that the applicant for the trade mark and the proprietor of an earlier trade mark who has filed a notice of opposition do have the status of being parties to the opposition proceedings.

37 The case-law has confirmed the inter partes nature of opposition proceedings (see, to that effect, judgment of 22 June 2004, Ruiz-Picasso and Others v OHIM — DaimlerChrysler (PICARO), T‑185/02, EU:T:2004:189, paragraph 31, and 4 February 2013, Marszałkowski v OHIM — Mar-Ko Fleischwaren (WALICHNOWY MARKO), T‑159/11, not published, EU:T:2013:56, paragraph 48) from which follows the need to observe fully the principle of the right to be heard and to ensure equality of arms between the parties (see, to that effect, judgment of 6 September 2006, DEF-TEC Defense Technology v OHIM — Defense Technology (FIRST DEFENSE AEROSOL PEPPER PROJECTOR), T‑6/05, EU:T:2006:241, paragraph 43). In such proceedings, it should be recalled that an advantage granted to one of the parties constitutes a disadvantage for the other, and EUIPO must therefore ensure that it remains impartial with regard to each of them (judgment of 12 December 2007, K & L Ruppert Stiftung v OHIM — Lopes de Almeida Cunha and Others (CORPO livre), T‑86/05, EU:T:2007:379, paragraph 21).

38 In the second place, and without prejudice to Article 75 of Regulation No 207/2009, under which decisions of EUIPO are to be based only on reasons or evidence on which the parties concerned have had an opportunity to present their comments, EUIPO is to examine the absolute grounds for refusal of registration of its own motion. In the light of the principle of continuity in terms of functions of EUIPO, the Boards of Appeal are competent to reopen the examination of the application for registration in the light of all the absolute grounds for refusal set out in Article 7 of that regulation, without being limited by the examiner’s reasoning. They may therefore raise of their own motion new absolute grounds for refusal of registration (see, to that effect, judgments of 8 July 1999, Procter & Gamble v OHIM (BABY-DRY), T‑163/98, EU:T:1999:145, paragraphs 38 and 43, and 16 February 2000, Procter & Gamble v OHIM (Soap bar shape), T‑122/99, EU:T:2000:39, paragraphs 26 to 28) subject to respect for the rights of the defence.

39 By contrast, it is apparent from Article 8 and Article 76(1) in fine of Regulation No 207/2009 that the relative grounds for refusal of registration are examined solely upon opposition by the proprietor of an earlier trade mark, and they may not be raised by EUIPO of its own motion (see, to that effect, judgment of 23 September 2003, Henkel v OHIM — LHS (UK) (KLEENCARE), T‑308/01, EU:T:2003:241, paragraph 32).

40 In the third place, under Article 76(1) of Regulation No 207/2009, when examining absolute grounds for refusal, the examiners and, as the case may be, the Boards of Appeal of EUIPO are required to examine the facts of their own motion in order to determine whether the mark for which registration is sought comes within one of the grounds for refusal of registration set out in Article 7 of that regulation. It follows that the competent bodies of EUIPO are required to examine the relevant facts of their own motion, which may lead them to apply an absolute ground for refusal, and may be led to base their decisions on facts which have not been put forward by the applicant for the mark (see, to that effect, judgment of 13 September 2013, Fürstlich Castell’sches Domänenamt v OHIM — Castel Frères (CASTEL), T‑320/10, EU:T:2013:424, paragraph 26 and the case-law cited, and order of 23 November 2015, Actega Terra v OHIM — Heidelberger Druckmaschinen (FoodSafe), T‑766/14, not published, EU:T:2015:913, paragraph 31).

41 However, where proceedings concerning a relative ground for refusal are involved, EUIPO may base its decision only on the facts and evidence submitted by the parties (see, to that effect, judgment of 23 September 2003, KLEENCARE, T‑308/01, EU:T:2003:241, paragraph 32). Nevertheless, the restriction of the factual basis of the examination carried out by the Board of Appeal does not preclude it from taking into consideration facts which are well known, that is, facts which are likely to be known by anyone or which may be learnt from generally accessible sources (judgment of 1 June 2016, Wolf Oil v EUIPO — SCT Lubricants (CHEMPIOIL), T‑34/15, not published, EU:T:2016:330, paragraph 64). In addition, under the third subparagraph of Rule 50(1) of Regulation No 2868/95, where the appeal is directed against a decision of an Opposition Division, the Board of Appeal is to limit its examination of the appeal to the facts and evidence presented within the time limits set in or specified by the Opposition Division in accordance with Regulation No 207/2009 and the rules [in Regulation No 2868/95], unless the Board of Appeal considers that additional or supplementary facts and evidence should be taken into account pursuant to Article 76(2) of Regulation No 207/2009 (see, to that effect, judgment of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraphs 44, 48 and 64).

42 Thus, in the judgment of 13 March 2007, OHIM v Kaul (C‑29/05 P, EU:C:2007:162), which concerns opposition proceedings and not an application for a declaration of invalidity based on an absolute ground for refusal, the Court of Justice held that the Board of Appeal was not required to take account of the facts and evidence that the party opposing the application [for registration] had submitted for the first time at the stage of the appeal before the Board of Appeal. That approach is consistent with the third subparagraph of Rule 50(1) of Regulation No 2868/95, introduced by Commission Regulation (EC) No 1041/2005 of 29 June 2005 amending Regulation No 2868/95 (OJ 2005 L 172, p. 4), and was applied to a decision of the Board of Appeal that had been taken in opposition proceedings before the amendment of that rule.

43 In the fourth place, it should be recalled that the system laid down by Regulation No 207/2009 provides for a review preceding registration in the ex parte examination of absolute grounds for refusal and in inter partes opposition proceedings as regards relative grounds for refusal (see above), and for an ex post review in invalidity proceedings as regards absolute and relative grounds for refusal.

44 This case concerns an application for a declaration of invalidity based on absolute grounds for refusal, made under Article 52(1)(a) of Regulation No 207/2009, read in conjunction with Article 7(1)(b) and (c) of that regulation. Therefore, the Court must examine whether those proceedings must be guided by the procedure for the examination of the absolute grounds for refusal of an application for registration or rather by the procedure for opposition based on relative grounds for refusal, in particular, as regards questions of evidence. In this connection, it is worth noting, first, that Article 52(1)(a) of Regulation No 207/2009 expressly refers to Article 7 of that regulation. Second, it cannot be ignored that Article 52(1) of that regulation states that invalidity proceedings are initiated on application by a party, as are opposition proceedings.

45 It is in the light of those considerations that the first plea in law must be examined. For that purpose, it should be noted that, in paragraphs 40 and 41 of the contested decision, the Board of Appeal held that the evidence in question had been submitted for the first time before it and, therefore, had been submitted belatedly. In that context, exercising its discretion, the Board of Appeal decided not to take that evidence into account.

46 First, as recalled in paragraph 40 above, it is clear from Article 76(1) of Regulation No 207/2009 that, when examining absolute grounds for refusal, the Boards of Appeal of EUIPO are required to examine the facts of their own motion in order to determine whether the mark for which registration is sought comes within one of the grounds for refusal of registration set out in Article 7 of that regulation.

47 In invalidity proceedings, however, EUIPO cannot be required to carry out afresh the examination which the examiner conducted, of his own motion, of the relevant facts which could have led him to apply the absolute grounds for refusal. It follows from the provisions of Articles 52 and 55 of Regulation No 207/2009 that the EU trade mark is regarded as valid until it has been declared invalid by EUIPO following invalidity proceedings. It therefore enjoys a presumption of validity, which is the logical consequence of the review carried out by EUIPO in the examination of an application for registration (judgment of 13 September 2013, CASTEL, T‑320/10, EU:T:2013:424, paragraph 27, and order of 23 November 2015, FoodSafe, T‑766/14, not published, EU:T:2015:913, paragraph 32).

48 By virtue of that presumption of validity, EUIPO’s obligation, under Article 76(1) of Regulation No 207/2009, to examine of its own motion the relevant facts which may lead it to apply absolute grounds for refusal, is restricted to the examination of the application for an EU trade mark carried out by the examiners of EUIPO and, on appeal, by the Boards of Appeal during the procedure for registration of that mark. However, in invalidity proceedings, as the registered EU trade mark is presumed to be valid, it is for the person who has filed the application for a declaration of invalidity to invoke before EUIPO the specific facts which call the validity of that trade mark into question (judgment of 13 September 2013, CASTEL, T‑320/10, EU:T:2013:424, paragraph 28, and order of 23 November 2015, FoodSafe, T‑766/14, not published, EU:T:2015:913, paragraph 33).

49 It follows from the foregoing that, in the invalidity proceedings, the Board of Appeal was not required to examine of its own motion the relevant facts which might have led it to apply the absolute grounds for refusal set out in Article 7(1)(b) and (c) of Regulation No 207/2009, contrary to what the applicant claims.

50 Second, despite there being no obligation on the Board of Appeal to examine the facts of its own motion in the present case, it is necessary to consider whether the Board of Appeal was entitled to hold that the evidence produced for the first time before it by the applicant was submitted belatedly, as EUIPO contends.

51 In this connection, it must be recalled that, under Article 76(2) of Regulation No 207/2009, EUIPO may disregard facts or evidence which are not submitted in due time by the parties concerned.

52 It follows that EUIPO has a discretion to take into account certain evidence only when it is produced late. By contrast, when that evidence is produced ‘in due time’, that provision does not confer a discretion on EUIPO to not take it into consideration (see, to that effect, judgment of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraphs 41 to 43 and 63).

53 Therefore, it is necessary to determine whether, for the reasons set out in paragraphs 36, 38, 40 and 43 above, evidence submitted for the first time before the Board of Appeal in invalidity proceedings based on an absolute ground must be regarded as not having been submitted in due time and therefore as belated (see, to that effect, judgment of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraph 49).

54 Concerning the existence of a time limit for the submission of evidence, EUIPO relies on Rule 37(b)(iv) of Regulation No 2868/95, under which an application to EUIPO for a declaration that an EU trade mark is invalid is to contain, as regards the grounds on which the application is based, an indication of the facts, evidence and arguments presented in support of those grounds.

55 Contrary to what EUIPO contends, it is in no way apparent from Rule 37(b)(iv) of Regulation No 2868/95 that the Board of Appeal is required to regard evidence that has not been submitted before the Cancellation Division as belated. That rule states merely that the application for a declaration of invalidity must include the evidence on which it is based. Therefore, the rule does not imply that any evidence submitted after the filing of the application for a declaration of invalidity, either before the Cancellation Division or before the Board of Appeal, is to be regarded as belated.

56 In addition, it must be stated that Regulations No 207/2009 and No 2868/95 do not contain any provisions setting a time limit for the production of evidence in relation to an application for a declaration of invalidity based on an absolute ground for refusal. This is in contrast to certain provisions making provision for time limits, and for the consequences of non-compliance with such time limits, applicable in opposition proceedings (Rule 19(1), Rule 20(1) and Rule 22(2) of Regulation No 2868/95; see, to that effect, judgment of 18 July 2013, New Yorker SHK Jeans v OHIM, C‑621/11 P, EU:C:2013:484, paragraphs 25 to 28); revocation proceedings (Rule 40(5) of that regulation; see, to that effect, judgment of 26 September 2013, Centrotherm Systemtechnik v OHIM and centrotherm Clean Solutions, C‑610/11 P, EU:C:2013:593, paragraphs 80 to 82); and invalidity proceedings based on relative grounds for refusal (Rule 40(6) of that regulation; see, to that effect, judgment of 18 November 2015, Menelaus v OHIM — Garcia Mahiques (VIGOR), T‑361/13, EU:T:2015:859, paragraphs 51 and 52 (not published)).

57 Moreover, it should be recalled that there is continuity, in terms of functions, between the different departments of EUIPO which adjudicate at first instance, such as the examiner, and the Opposition and Cancellation Divisions, on the one hand, and the Boards of Appeal, on the other (see, to that effect, judgments of 23 September 2003, KLEENCARE, T‑308/01, EU:T:2003:241, paragraph 25, and 11 July 2006, Caviar Anzali v OHIM — Novomarket (Asetra), T‑252/04, EU:T:2006:199, paragraph 30).

58 In the light of the foregoing, it must be held that Article 76 of Regulation No 207/2009, read in conjunction with Rule 37(b)(iv) of Regulation No 2868/95, does not imply that evidence submitted for the first time before the Board of Appeal must be regarded as belated by the Board of Appeal in invalidity proceedings based on an absolute ground for refusal.

59 Third, EUIPO contends that the third subparagraph of Rule 50(1) of Regulation No 2868/95 applies by analogy in the present case.

60 In this connection, it must be stated that it is clear from the wording of the third subparagraph of Rule 50(1) of Regulation No 2868/95 that it expressly refers to the appeal proceedings brought against the decision of the Opposition Division, and not to the appeal proceedings brought against the decision of the Cancellation Division concerning an absolute ground for refusal.

61 In addition, according to the case-law, although the first subparagraph of Rule 50(1) of Regulation No 2868/95 lays down the principle that the provisions relating to proceedings before the department which has made the decision against which the appeal is brought are to be applicable to the appeal proceedings mutatis mutandis, the third subparagraph of Rule 50(1) constitutes a special rule derogating from that principle. That special rule is specific to the appeal proceedings brought against the decision of the Opposition Division and specifies the rules, before the Board of Appeal, governing the facts and evidence submitted after the expiry of the time limits set or specified at first instance (judgment of 3 October 2013, Rintisch v OHIM, C‑120/12 P, EU:C:2013:638, paragraph 28).

62 As stated in paragraph 42 above, that special rule was introduced into Regulation No 2868/95 when it was amended by Regulation No 1041/2005, which, according to recital 7 thereof, seeks to specify clearly the legal consequences of procedural deficiencies in the opposition proceedings. That statement confirms that the consequences, before the Board of Appeal, of the delay in the submission of evidence before the Opposition Division must be determined on the basis of that rule (judgment of 3 October 2013, Rintisch v OHIM, C‑120/12 P, EU:C:2013:638, paragraph 30).

63 It must be pointed out that, as with the relative grounds for refusal of registration in opposition proceedings, the relative grounds for invalidity are considered by EUIPO only at the request of the proprietor of the earlier trade mark in question. Consequently, invalidity proceedings concerning a relative ground for invalidity are, in principle, governed by the same principles as opposition proceedings (judgment of 25 May 2005, TeleTech Holdings v OHIM — Teletech International (TELETECH GLOBAL VENTURES), T‑288/03, EU:T:2005:177, paragraph 65).

64 In the present case, the first plea in law concerns invalidity proceedings based on absolute grounds for refusal, which are to be distinguished from relative grounds for refusal. It is true that invalidity proceedings based on absolute grounds for refusal are initiated on application by a party, as set out in Article 52(1) of Regulation No 207/2009. However, Article 52(1)(a) of that regulation refers directly to the grounds for refusal set out in Article 7 of that regulation, which, as stated in paragraphs 31 to 33 above, pursue aims which are in the public interest. It must be added that those public interest considerations underlying Article 7 of Regulation No 207/2009 are also to be taken into consideration in invalidity proceedings based on absolute grounds for refusal (see, to that effect, order of 30 April 2015, Castel Frères v OHIM, C‑622/13 P, not published, EU:C:2015:297, paragraphs 41 and 43 to 45). Moreover, it must be recalled that the purpose of invalidity proceedings based on absolute grounds for refusal is, inter alia, to enable EUIPO to review the validity of the registration of a trade mark and to adopt, where necessary, a position which it ought to have adopted of its own motion under Article 37 of the regulation in question (see, to that effect, order of 30 April 2015, Castel Frères v OHIM, C‑622/13 P, not published, EU:C:2015:297, paragraph 42). Consequently, the application by analogy of the third subparagraph of Rule 50(1) of Regulation No 2868/95 to invalidity proceedings based on absolute grounds would run counter to the public interest pursued by the provisions of Article 7 of Regulation No 207/2009.

65 Therefore, neither the wording of the third subparagraph of Rule 50(1) of Regulation No 2868/95, which reflects the express intention of the EU legislature, nor the nature and purpose of invalidity proceedings based on absolute grounds for refusal, permit the application by analogy of that rule. Therefore, EUIPO was wrong in invoking that provision in the present case.

66 It follows from the foregoing that the Board of Appeal erred in law in holding that the evidence produced by the applicant before the Board of Appeal for the first time was not to be taken into consideration because of its late submission.

67 It is nevertheless necessary to examine the conclusions to be drawn from that error. According to settled case-law, a procedural irregularity will entail the annulment of a decision in whole or in part only if it is shown that in the absence of such irregularity the contested decision might have been substantively different (judgments of 10 July 2006, La Baronia de Turis v OHIM — Baron Philippe de Rothschild (LA BARONNIE), T‑323/03, EU:T:2006:197, paragraph 69, and 11 July 2006, Asetra, T‑252/04, EU:T:2006:199, paragraph 45).

68 In the present case, it is not inconceivable that the evidence which the Board of Appeal wrongly refused to take into consideration may be such as to modify the substance of the contested decision since the evidence in question involved, for the first time, evidence relating to the relevant point in time, namely the date on which the application for registration was filed (see paragraph 28 above). In that regard, it is not, however, for the Court to replace EUIPO in assessing the evidence in question (judgments of 10 July 2006, LA BARONNIE, T‑323/03, EU:T:2006:197, paragraph 70, and 11 July 2006, Asetra, T‑252/04, EU:T:2006:199, paragraph 46).

69 Therefore, the first plea in law must be upheld and, consequently, the contested decision must be annulled.

The second and third pleas in law, relating to descriptiveness and to lack of distinctive character, and the second head of claim, relating to alteration of the contested decision and cancellation of the contested mark

70 It follows from the analysis of the first plea in law that there is no need for the Court to examine the second and third pleas in law concerning the contested mark’s alleged descriptiveness and alleged lack of distinctive character, respectively. Moreover, since the principal claim for annulment of the contested decision has been upheld, there is no need to rule on the second head of claim, relating to alteration of the contested decision and cancellation of the contested mark, put forward by the applicant as a subsidiary claim and the admissibility of which is in part disputed by EUIPO.

Costs

71 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since EUIPO has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the applicant, in accordance with the form of order sought by the applicant.

72 Under Article 138(3) of the Rules of Procedure, the Court may order an intervener other than those referred to in Article 138(1) and (2) of those rules to bear his own costs. In the circumstances of this case, the intervener is to bear its own costs.

On those grounds, THE GENERAL COURT (Sixth Chamber) hereby:

1. Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 19 June 2015 (Case R 2542/2013-4), relating to invalidity proceedings between European Food SA and Société des produits Nestlé SA;

2. Orders EUIPO to bear its own costs and to pay those incurred by European Food;

3. Orders Société des produits Nestlé to bear its own costs.

Frimodt Nielsen Collins Valančius Delivered in open court in Luxembourg on 28 September 2016. [Signatures]

( *1 ) Language of the case: English.