mobile.de GmbH, anciennement mobile.international GmbH v European Union Intellectual Property Office.
Date: 2018-02-28
28


It must be borne in mind that the Statute of the Court of Justice of the European Union and the Rules of Procedure of the Court of Justice make no provision for interested parties to submit observations in response to the Advocate General’s Opinion (judgment of 4 September 2014, Vnuk, C‑162/13, EU:C:2014:2146, paragraph 30 and the case-law cited).
29


Pursuant to the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require the Advocate General’s involvement. The Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based (judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 25).
30


Consequently, a party’s disagreement with the Opinion of the Advocate General, irrespective of the questions that he examines in his Opinion, cannot in itself constitute grounds justifying the reopening of the oral part of the procedure (judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 26).
31


Be that as it may, the Court may at any moment, having heard the Advocate General, order the reopening of the oral procedure under Article 83 of its Rules of Procedure if, inter alia, it considers that it lacks sufficient information or where the case must be decided on the basis of an argument which has not been debated between the parties or the interested persons referred to in Article 23 of the Statute of the Court of Justice of the European Union (judgment of 29 April 2015, Nordzucker, C‑148/14, EU:C:2015:287, paragraph 24).
35


According to the settled case-law of the Court, it follows from the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 168(1)(d) of the Rules of Procedure of the Court that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and the legal arguments specifically advanced in support of the appeal. In that regard, it is required, under Article 169(2) of that regulation, that the pleas in law and legal arguments relied on identify precisely those points in the grounds of the judgment of the General Court which are contested (judgment of 20 September 2016, Mallis and Others v Commission and ECB, C‑105/15 P to C‑109/15 P, EU:C:2016:702, paragraphs 33 and 34).
38


In the present case, since mobile.de acted as applicant and not as intervener at first instance and it was entirely unsuccessful, that fact alone justifies its locus standi and its interest in bringing the present appeal, without it having to demonstrate that the judgment under appeal affects it directly (see, to that effect, judgment of 5 April 2017, EUIPO v Szajner, C‑598/14 P, EU:C:2017:265, paragraph 24).
48


In accordance with the settled case-law of the Court, recalled by the General Court in paragraph 25 of the judgment under appeal, it follows from the wording of that provision 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 time limits to which such submission is subject under the provisions of Regulation No 207/2009 and EUIPO is in no way prohibited from taking account of facts and evidence which are submitted or produced out of time (judgments of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraph 42, and of 4 May 2017, Comercializadora Eloro v EUIPO, C‑71/16 P, not published, EU:C:2017:345, paragraph 55).
49


By stating that EUIPO ‘may’, in such a case, decide to disregard such evidence, that provision grants EUIPO broad discretion to decide, while giving reasons for its decision in that regard, whether or not to take such evidence into account (judgments of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraphs 43, 63 and 68, and of 4 May 2017, Comercializadora Eloro v EUIPO, C‑71/16 P, not published, EU:C:2017:345, paragraph 56).
53


Although it follows from the wording of that rule that, when no proof of use of the mark concerned is produced within the time limit set by EUIPO, the application for a declaration of invalidity must be rejected by EUIPO of its own motion, such a conclusion does not, however, pertain, as the General Court rightly held in paragraph 27 of the judgment under appeal, where some evidence intended to show that use have been produced within that time limit (see, by analogy, judgments of 26 September 2013, Centrotherm Systemtechnik v OHIMandcentrotherm Clean Solutions, C‑610/11 P, EU:C:2013:593, paragraph 86, and of 4 May 2017, Comercializadora Eloro v EUIPO, C‑71/16 P, not published, EU:C:2017:345, paragraph 58).
54


In such a case, and unless it emerges that that evidence is entirely irrelevant for the purpose of establishing genuine use of the earlier mark in question, the proceedings must take their course. EUIPO must, inter alia, as provided for by Article 57(1) of Regulation No 207/2009, invite the parties, as often as necessary, to file observations on communications from the other parties or issued by EUIPO itself. In such a context, if the application for a declaration of invalidity is rejected on the ground that the earlier mark concerned was not subject to genuine use, that rejection does not proceed from application of Rule 40(6) of the Implementing Regulation, an essentially procedural provision, but solely from application of the substantive provisions in Article 57(2) or (3) of Regulation No 207/2009 (see, by analogy, judgment of 26 September 2013 in Centrotherm Systemtechnik v OHIM and centrotherm Clean Solutions, C‑610/11 P, EU:C:2013:593, paragraph 87).
55


It follows therefrom that, as the General Court rightly found in paragraph 29 of the judgment under appeal, it remains possible to submit evidence of use of the mark in addition to the evidence adduced within the time period set by EUIPO under Rule 40(6) of the Implementing Regulation and that EUIPO is in no way prohibited from taking account of additional evidence which is submitted after that time under the discretion conferred upon it under Article 76(2) of Regulation No 207/2009 (see, by analogy, judgment of 26 September 2013, Centrotherm Systemtechnik v OHMI and centrotherm Clean Solutions, C‑610/11 P, EU:C:2013:593, paragraph 88, and order of 16 June 2016, L’Oréal v EUIPO, C‑611/15 P, not published, EU:C:2016:463, paragraph 25).
56


Accordingly, Rule 40(6) of the Implementing Regulation does not, contrary to the appellant’s submissions, constitute a provision contrary to Article 76(2) of Regulation No 207/2009, with the result that the Board of Appeal is not entitled to take account of additional evidence of use of the earlier mark in question produced by the applicant for a declaration of invalidity in support of its action before it (see, by analogy, judgment of 26 September 2013, Centrotherm Systemtechnik v OHMI and centrotherm Clean Solutions, C‑610/11 P, EU:C:2013:593, paragraph 88).
57


As regards the appeal procedure, the Court has already held that it follows from Article 63(2) of Regulation No 207/2009, read in conjunction with Article 76(2) of that regulation, that, for the purposes of the examination of the merits of the appeal brought before it, the Board of Appeal is not only to invite the parties, as often as necessary, to file, within time limits which it sets, observations on notifications which it has sent to them, but may also decide on measures of inquiry, including the production of facts or evidence. In turn, such provisions demonstrate the possibility of seeing the underlying facts of a dispute multiply at various stages of the proceedings before EUIPO (see, to that effect, judgment of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraph 58).
60


Thus, the Implementing Regulation expressly provides that the Board of Appeal enjoys, when examining an appeal directed against a decision of the Opposition Division, the discretion deriving from the third subparagraph of Rule 50(1) of that regulation and from Article 76(2) of Regulation No 207/2009 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 (judgment of 3 October 2013, Rintisch v OHIM, C‑122/12 P, EU:C:2013:628, paragraph 33).
61


However, it cannot be inferred therefrom, a contrario, that during the examination of an appeal against a decision of a Cancellation Division, the Board of Appeal does not have such discretion. As the Court has previously held, the third subparagraph of Rule 50(1) of the Implementing Regulation is merely the expression, as regards the examination of an appeal against a decision of an Opposition Division, of the principle flowing from Article 76(2) of Regulation No 207/2009, which constitutes the legal basis for Rule 50 and contains a rule which applies horizontally within the scheme of that regulation, which, accordingly, applies irrespective of the nature of the proceedings concerned (see, to that effect, judgment of 21 July 2016, EUIPO v Grau Ferrer, C‑597/14 P, EU:C:2016:579, paragraphs 25 and 27).
63


As for the remainder, in that the appellant complains that the General Court made an incomplete assessment of the criteria justifying the taking into account of that evidence, it is appropriate to recall that when EUIPO is called upon to give judgment in the context of invalidity proceedings, taking facts or evidence into account which have been produced out of time is particularly likely to be justified where EUIPO considers, firstly, that the material which has been produced late is, on the face of it, likely to be relevant to the outcome of the application for a declaration of invalidity brought before it and, secondly, that the stage of the proceedings at which that late submission takes place and the circumstances surrounding it do not argue against such matters being taken into account (see, by analogy, judgments of 13 March 2007, OHMI v Kaul, C‑29/05 P, EU:C:2007:162, paragraph 44, and of 4 May 2017, Comercializadora Eloro v EUIPO, C‑71/16 P, not published, EU:C:2017:345, paragraph 59).
65


Finally, in so far as the appellant complains that the General Court incorrectly assessed the probative value and distorted the content of certain items of evidence, it must be recalled that it follows from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that the appeal is limited to points of law. The General Court thus has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of that evidence thus do not, save where the facts and evidence are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 17 March 2016, Naazneen Investments v OHIM, C‑252/15 P, not published, EU:C:2016:178, paragraph 59).
66


Furthermore, given the exceptional nature of a complaint of distortion of the facts and evidence, both the provisions referred to and Article 168(1)(d) of the Rules of Procedure of the Court of Justice require, in particular, that an appellant indicate precisely the elements alleged to have been distorted by the General Court and show the errors of appraisal which, in its view, led to that distortion. Such a distortion must be obvious from the documents in the file, without there being any need to carry out a new assessment of the facts and evidence (judgment of 22 September 2016, Pensa Pharma v EUIPO, C‑442/15 P, EU:C:2016:720, paragraphs 21 and 60).
100


As for the remainder, in so far as the appellant complains that the General Court disregarded the fact that the Board of Appeal was incorrect to annul the decisions of the Cancellation Division in its entirety, it must be borne in mind that, as the General Court also noted in paragraph 83 of the judgment under appeal, the operative part of a measure must be read in the light of the grounds (see, to that effect, order of 10 July 2001, Irish Sugar v Commission, C‑497/99 P, EU:C:2001:393, paragraph 15, and judgment of 22 October 2013, Commission v Germany, C‑95/12, EU:C:2013:676, paragraph 40).
104


However, since the Board of Appeal was of the view that the proof of genuine use of the earlier national mark had not been adduced by its proprietor in respect of the other services targeted by the applications for a declaration of invalidity, namely the services in Class 35 of the Nice Arrangement other than those of advertising for motor vehicles and the services in Class 42 of the Nice Arrangement, the decisions of the Cancellation Division must be regarded, in the absence of any action brought before the General Court on that point, as having definitively rejected the applications for a declaration of invalidity as regards those services (see, by analogy, judgment of 14 November 2017, British Airways v Commission, C‑122/16 P, EU:C:2017:861, paragraphs 82 to 85 and the case-law cited).