16.3.2015   

EN

Official Journal of the European Union

C 89/5

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set aside the judgment under appeal;

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deliver a new judgment on the substance of the case, dismissing the action brought against the contested decision, or refer the case back to the General Court;

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order the applicant before the General Court to pay the costs.

1.

The General Court infringed Article 76(2) of the CTR (1) and the third paragraph of Rule 50(1) of Regulation No 2868/95 (2) by considering that those provisions were applicable in the present case on the basis of incorrect assessment criteria.

2.

The General Court infringed Article 76(2) of the CTR and the third paragraph of Rule 50(1) of Regulation No 2868/95 by basing its findings on an incorrect interpretation of the discretion arising from those provisions. In particular, by considering that the Board of Appeal enjoys such a discretion irrespective of whether the evidence presented for the first time before it is additional or not. The question whether the Boards of Appeal’s discretion under Article 76(2) of the CTR and the third paragraph of Rule 50(1) of Regulation No 2868/95 exists in any event, that is to say, even when the evidence presented out of time before the Board of Appeal is new, is a point of law which must be clarified by the Court of Justice.

3.

The General Court erroneously applied Article 15(1), second paragraph, point (a) of the CTR by concluding that the earlier Community trade mark had been used in a form differing in elements which did not alter the distinctive character of the mark in the form in which it was registered.