1.

set aside the judgment of the General Court of the European Union of September 29, 2011 in Case T-415/09 and

2.

order the Office for Harmonization in the Internal Market (Trade Marks and Designs) to pay the costs of the proceedings of first instance and on appeal.

—

The consideration of additional evidence of use filed after the expiry of the deadline set by the Office for submitting such evidence is a violation of Articles 42 (2), (3), 76 (2), CTMR (1) (formerly Articles 43 (2), (3), 74 (2) CTMR) and Rule 22 (2) CTMIR.

—

The submission of evidence proving genuine use of the opposition mark is subject to Rule 22 (2) CTMIR only. The wording of Rule 22 (2) CTMIR does not confer discretion. Therefore, Article 76 (2) CTMR does not apply in so far. In case genuine use of the opposition mark has not been proven within the period set by the Office in accordance with Rule 22 (2) sentence 1 CTMIR, the opposition shall be rejected.

—

Consequently, in case the Office invites the opponent to hand in observations in reply to the applicant's arguments with respect to the proof of use filed, in accordance with Article 75 CTMR and Rule 20 (4) CTMIR, the opponent may submit its observations. However, further evidence of use filed cannot be taken into consideration as it was filed after the expiry of term. By taking into account the evidence filed late it infringed Article 42 (2)' (3) CTMR and Rule 22 (2) CTMIR.

—

The mere submission of observations by the applicant in which it contests the sufficiency of the evidence filed within the deadline does not justify the taking into account of additional evidence of use.

—

Even if Article 76 (2) CTMR is considered applicable as regards additional proof of use filed after the expiry of term of Rule 22 (2) CTMIR, in the current case, Articles 42 (2), (3), 76 (2) CTMR and Rule 22 (2) CTMIR have been infringed.

—

The evidence submitted subsequently was no additional evidence. Additional evidence requires that the evidence filed within the first time limit proved genuine use of the opposition mark and that the evidence filed at a later date only substantiates the facts already proven. Thus, the General Court infringed Article 76 (2) CTMR by allowing application of that provision in appeal proceedings.

—

There has been an abuse of discretion conferred by Art. 76 (2) CTMR. The Office abused its discretion by merely taking into account that the filing of further examples of use was necessary for the opponent. The question whether the submission of additional evidence is necessary for one party to the proceeding is no factor to be taken into account by the respondent. This question has to be answered by the respective party on its own. Moreover, the Office did not take into account further circumstances. It did not even give consideration to the value of the material filed first. By holding that there has been no abuse of discretion the General Court infringed applicable law.