Source: EURLEX
Language: en
Format: md

Case T‑235/16

(publication by extracts)

GP Joule PV GmbH & Co. KG

v

European Union Intellectual Property Office

(EU trade mark — Opposition proceedings — Application for the EU figurative trade mark GPTech — Earlier EU word marks GP JOULE — Failure to produce before the Opposition Division proof of entitlement to file a notice of opposition — Proof first produced before the Board of Appeal — Failure to take into account — Discretion of the Board of Appeal — Circumstances precluding additional or supplementary evidence from being taken into account — Article 76(2) of Regulation (EC) No 207/2009 — Rules 17(4), 19(2), 20(1) and 50(1) of Regulation (EC) No 2868/95)

Summary — Judgment of the General Court (Seventh Chamber), 21 June 2017

EU trade mark — Appeals procedure — Appeal against a decision of the Opposition Division of EUIPO — Examination by the Board of Appeal — Scope — Facts and evidence not produced in support of the opposition within the period prescribed for that purpose — Account taken — Discretion of the Board of Appeal — Facts precluding new or additional evidence being taken into account

(Council Regulation No 207/2009, Art. 76(2); Commission Regulation No 2868/95, Art. 1, Rule 50(1), third subpara.)

When examining an appeal directed against a decision of an Opposition Division, the Board of Appeal of European Union Intellectual Property Office has a discretion deriving from the third subparagraph of Rule 50(1) of Regulation No 2868/95 implementing Council Regulation No 40/94 on the Community trade mark and from Article 76(2) of Regulation No 207/2009 on the Community trade mark to decide whether or not to take into account additional or supplementary facts and evidence which were not presented within the time limits set or specified by the Opposition Division. With regard to proof of use of a mark, when no proof thereof is submitted within the time limit set by EUIPO, the opposition must automatically be rejected by EUIPO. However, when evidence is produced within the time limit set by EUIPO, the production of supplementary evidence remains possible.

In that regard, where an applicant presents no proof of its entitlement to file a notice of opposition within the time limit set by EUIPO, such proof, submitted for the first time before the Board of Appeal, cannot be characterised as ‘additional’ or ‘supplementary’ evidence within the meaning of the third subparagraph of Rule 50(1) of Regulation No 2868/95 and Article 76(2) of Regulation No 207/2009.

(see paras 41, 43, 46, 49)

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