10.3.2007   

EN

Official Journal of the European Union

C 56/13

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set aside the judgment of the Court of First Instance of 13 September 2006 in Case T-191/04.

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order the Respondent to pay Tesco's costs of this appeal and of the appeal before the Court of First Instance.

1.

Article 8 and 42 of the Community Trade Mark Regulation (1) do not require an opponent to prove any of the conditions of an opposition beyond the opposition period. A correct and legally certain interpretation of the provisions requires an opponent to demonstrate conditions such as proprietorship and subsistence of the earlier right once and once only, that is to say, at the time of the opposition;

2.

Rules 15, 16 and 20 of Commission Regulation (EC) No. 2868/95 of 13 December 1995 implementing Regulation No. 40/94 on the Community Trade Mark (2) did not require the opponent to substantiate the earlier mark in any way beyond that already provided and, in particular, did not impose any obligation upon it to demonstrate renewal of the earlier mark beyond the opposition period;

3.

There was a legitimate expectation on the part of Tesco that it was not required to provide further substantiation of its earlier right beyond that already provided;

4.

To impose upon Tesco the obligation to demonstrate renewal, as of 28 January 2000, 24 February 2000, 13 June 2000 or even 23 October 2000 would be to require Tesco retrospectively to prove something that, as of those dates, it was either not able and/or not required to do at the time under national law;

5.

There were breaches of procedure before the Court of First Instance adversely affecting Tesco in that: (a) OHIM sought to rely on a version of its Opposition Guidelines that was not in use at the material time; and (b) OHIM advanced arguments that went beyond the terms of the dispute as delimited by the parties.