ORDER OF THE GENERAL COURT (Fifth Chamber)

16 September 2026 (*)

( EU trademark – Opposition proceedings – Application for the EU word mark SPETRA – Earlier non-registered national word mark SPETRA – Earlier non-registered national figurative mark SPETRA – Relative ground for refusal – Article 8(4) of Regulation (EU) 2017/1001 – Agreement on the withdrawal of the United Kingdom from the European Union and from Euratom – Action manifestly lacking any foundation in law )

In Case T‑83/22,

Selimfiber Co. Ltd, established in Gimpo-si, Gyeonggi-do (South Korea), represented by M. Odink, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by D. Hanf, acting as Agent,

defendant,

the other party to the proceedings before the Board of Appeal of EUIPO being

Mohammad Sohail Qureshi, residing in Bradford (United Kingdom),

THE GENERAL COURT (Fifth Chamber),

composed of M. Sampol Pucurull, President, T. Pynnä and W. Valasidis (Rapporteur), Judges,

Registrar: V. Di Bucci,

having regard to the written part of the procedure, in particular:

–        the decision of 12 January 2023, taken pursuant to Article 69(d) of the Rules of Procedure of the General Court, to stay the proceedings pending the decision bringing the proceedings to an end in the case which gave rise to the judgment of 5 February 2026, EUIPO v Nowhere (C‑337/22 P, EU:C:2026:71),

–        the measure of organisation of procedure of 13 February 2026 inviting the parties, inter alia, to submit their observations on the conclusions to be drawn from the judgment of 5 February 2026, EUIPO v Nowhere (C‑337/22 P, EU:C:2026:71), for the present case,

–        the applicant’s failure to reply to that measure of organisation of procedure within the prescribed period,

–        EUIPO’s response, lodged at the Registry of the General Court on 23 February 2026,

having regard to the applicant’s request for a hearing, lodged at the Court Registry on 7 September 2022,

makes the following

Order

1        By its action under Article 263 TFEU, the applicant, Selimfiber Co. Ltd, seeks annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 22 November 2021 (Case R 684/2021-1) (‘the contested decision’).

 Background to the dispute

2        On 13 July 2020, Mr Mohammad Sohail Qureshi filed an application for registration of an EU trade mark with EUIPO in respect of the word sign SPETRA.

3        The mark applied for covers goods in Class 26 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, corresponding to the following description: ‘Hair decorations; hair extensions; hair (false -); hair fasteners; hair ornaments, hair rollers, hair fastening articles, and false hair; hair pieces; hair (plaited -); hair weaves; hair wraps; human hair; wigs’.

4        On 6 November 2020, the applicant filed a notice of opposition to the registration of the mark applied for in respect of the goods referred to in paragraph 3 above.

5        The opposition was based on the following earlier rights:

–        the non-registered word mark SPETRA, used in the course of trade in the United Kingdom for goods in the hair extensions and replacement sector;

–        the non-registered figurative mark, reproduced below, used in the course of trade in the United Kingdom for the same goods as the non-registered word mark SPETRA and protected by the law of passing off:

6        The ground relied on in support of the opposition was that set out in Article 8(4) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).

7        On 15 February 2021, the Opposition Division rejected the opposition on the ground that, with effect from the entry into force of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (OJ 2020 L 29, p. 7; ‘the Withdrawal Agreement’), the United Kingdom had become a third country and that State’s earlier rights no longer constituted, as from 1 January 2021  the date on which the transition period ended  earlier rights protected ‘in a Member State’ for the purposes of Article 8(4) of Regulation 2017/1001.

8        On 14 April 2021, the applicant filed a notice of appeal with EUIPO against the Opposition Division’s decision.

9        By the contested decision, the Board of Appeal upheld the Opposition Division’s decision and dismissed the appeal. In particular, it held that, due to the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the expiry, on 31 December 2020, of the transition period, the earlier marks in the United Kingdom relied on in support of the opposition could no longer constitute a valid basis for that opposition. According to the Board of Appeal, an earlier right relied on in support of an opposition must be valid not only on the date on which the application for registration of the EU trade mark is filed, but also on the date on which the Board of Appeal decides on the opposition. Accordingly, it concluded that the opposition, being unfounded, had ‘become devoid of purpose as of 1 January 2021’.

 Forms of order sought

10      The applicant claims that the Court should:

–        annul the contested decision and refer the case back to the Opposition Division for a decision on the merits;

–        order EUIPO to pay the costs.

11      EUIPO contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

12      Under Article 126 of the Rules of Procedure of the General Court, where an action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.

13      In the present case, the Court considers that it has sufficient information from the documents in the file and decides, pursuant to that article, to give a decision without taking further steps in the proceedings, even though one of the parties has requested a hearing (see, to that effect, judgment of 6 June 2018, Apcoa Parking v EUIPO, C‑32/17 P, not published, EU:C:2018:396, paragraph 22 and the case-law cited).

14      In support of its action, the applicant relies on a single plea in law, alleging infringement of Article 8(4) of Regulation 2017/1001. It disputes the Board of Appeal’s assessment that the conditions laid down in that article must be met both on the date of filing of the application for registration of the EU trade mark and on the date on which the Board of Appeal takes its decision.

15      According to the applicant, the only relevant date for the purpose of examining the opposition is the date of filing of the application for registration of the mark applied for, when the United Kingdom was still a Member State of the European Union, as the transition period had not yet expired. That interpretation is confirmed by the case-law set out, in particular, in the judgment of 30 January 2020, Grupo Textil Brownie v EUIPO – The Guide Association (BROWNIE) (T‑598/18, EU:T:2020:22, paragraph 19).

16      In that regard, the applicant submits that, even if the earlier non-registered marks relied on in support of the opposition ceased, after the end of the transition period, to constitute rights protected in a Member State, a conflict between those marks and the mark applied for existed on the date on which the application for registration of the EU trade mark was filed and, at the very least, until the expiry of the transition period. It further submits that the date of filing of the application for registration, being ‘unchanging and certain’, ensures legal certainty and the proper functioning of the EU trade mark system.

17      EUIPO disputes the applicant’s arguments.

18      Under Article 8(4) of Regulation No 2017/1001, upon opposition by the proprietor of a non-registered trade mark or of another sign used in the course of trade of more than mere local significance, the trade mark applied for is not to be registered where and to the extent that, pursuant to Union legislation or the law of the Member State governing that sign, that sign satisfies the following two conditions. First, under Article 8(4)(a) of that regulation, ‘rights to that sign were acquired prior to the date of application for registration of the EU trade mark, or the date of the priority claimed for the application for registration of the EU trade mark’. Second, under Article 8(4)(b) of that regulation, ‘that sign confers on its proprietor the right to prohibit the use of a subsequent trade mark’.

19      As the Court has noted, under Article 50(3) TEU, the Treaties ceased to apply to the United Kingdom on the date on which the Withdrawal Agreement entered into force on 1 February 2020. However, the fourth paragraph of the preamble to that agreement states that the law of the European Union in its entirety ceases to apply to that State from the date of entry into force of that agreement ‘subject to the arrangements laid down’ in that agreement. That agreement provides, in Articles 126 and 127 thereof, for a transition period, starting on the date of entry into force of that agreement and ending on 31 December 2020, during which, unless otherwise provided for in that agreement, EU law is to be applicable to and in the United Kingdom and any reference to Member States in that law is to be understood as including that State (see judgment of 5 February 2026, EUIPO v Nowhere, C‑337/22 P, EU:C:2026:71, paragraphs 154 and 155 and the case-law cited).

20      By contrast, Articles 54 to 61 of the Withdrawal Agreement, which appear in Title IV of Part Three thereof, entitled ‘Intellectual Property’, and which are applicable from the end of the transition period, in accordance with the fourth paragraph of Article 185 of that agreement, do not state what treatment is to be given to an opposition brought before the date of entry into force of that agreement, on the basis of an earlier right protected in the United Kingdom, and which is pending at the end of that period (judgment of 5 February 2026, EUIPO v Nowhere, C‑337/22 P, EU:C:2026:71, paragraph 156).

21      In the present case, it is common ground that the application for registration of the mark applied for was filed before the expiry, on 31 December 2020, of the transition period provided for in the Withdrawal Agreement, and that the Board of Appeal delivered the contested decision after that date.

22      It is also common ground that, as from the expiry of the transition period and, a fortiori, on the date of the contested decision, the earlier non-registered marks in the United Kingdom, relied on in support of the opposition, no longer constituted rights conferred under the ‘law of [a] Member State’ within the meaning of Article 8(4) of Regulation 2017/1001.

23      However, the parties disagree over whether the existence of an earlier right relied on in support of an opposition brought on the basis of Article 8(4) of Regulation 2017/1001 must be assessed both on the date of filing of the application for registration of the EU trade mark and on the date on which EUIPO gives a final decision on the opposition, or whether, on the contrary, the only relevant date is that of the filing of that application.

24      In that regard, it should be noted that the Court has already ruled on the issue of determining the relevant dates for the purpose of assessing the existence of an earlier right relied on in support of an opposition based on Article 8(4) of Regulation No 207/2009 in the context of the United Kingdom’s withdrawal from the European Union.

25      In particular, the Court has held that, for such an opposition to be upheld, the earlier right relied on must continue to exist until the date on which EUIPO gives its final decision on the opposition, including at the stage of the appeal before the Board of Appeal (judgment of 5 February 2026, EUIPO v Nowhere, C‑337/22 P, EU:C:2026:71, paragraph 173).

26      In the light of that case-law, the applicant cannot meaningfully claim that the only relevant date for the purpose of assessing the existence of the earlier rights relied on in support of the opposition is the date of filing of the application for registration of the mark applied for. Those earlier rights must continue to constitute, until the date on which EUIPO gives a final decision on the opposition, including at the stage of the appeal before the Board of Appeal, rights protected in a Member State for the purposes of Article 8(4) of Regulation 2017/1001. That was not the case here, however, since the earlier rights relied on had ceased to constitute rights protected in a Member State with effect from 1 January 2021.

27      The Board of Appeal was therefore entitled to find that the earlier rights protected in the United Kingdom, relied on in support of the opposition, had ceased, since 1 January 2021, to constitute rights protected in a Member State for the purposes of Article 8(4) of Regulation 2017/1001 and could therefore no longer serve as a valid basis for the opposition.

28      None of the other arguments put forward by the applicant is capable of calling that finding into question.

29      In the first place, as regards the applicant’s reference to the case-law arising from the judgment of 30 January 2020, BROWNIE (T‑598/18, EU:T:2020:22), it is sufficient to note that the Court of Justice clarified, in the judgment of 5 February 2026, EUIPO v Nowhere (C‑337/22 P, EU:C:2026:71, paragraphs 100 to 102), that the premiss that the fact that the earlier right relied on loses, after the date of filing of the application for registration of the EU trade mark, the status of a right protected in a Member State does not, in principle, affect the outcome of the opposition, has no basis either in the wording and context of Article 8(4) of Regulation No 207/2009 or, more generally, in the objectives of opposition proceedings.

30      Furthermore, as regards the applicant’s various references to the case-law relating to infringement proceedings in order to argue that the existence of a conflict between the marks at issue until the expiry of the transition period prevented the opposition from becoming devoid of purpose, the Court has explained that, unlike infringement proceedings, opposition proceedings do not concern a conflict linked to the actual use of the marks in the course of trade, but a potential conflict, conditional on the registration applied for and linked to the coexistence of two competing intellectual property rights, which are equally valid and enforceable. In addition, an EU trade mark is to prevail against third parties only from the date of publication of registration of the latter trade mark (judgment of 5 February 2026, EUIPO v Nowhere, C‑337/22 P, EU:C:2026:71, paragraphs 129 and 131).

31      In the second place, the applicant’s argument that the Board of Appeal wrongly relied on Communication No 2/20 of the Executive Director of EUIPO of 10 September 2020 on the impact of the United Kingdom’s withdrawal from the European Union on certain aspects of EUIPO’s practice likewise cannot succeed, given that that communication has no binding legal effect.

32      In that regard, it is apparent from the contested decision that the Board of Appeal expressly recognised the non-binding nature of the communication referred to in paragraph 31 above and the independence enjoyed by the members of the Boards of Appeal in the performance of their duties. In those circumstances, the mere fact that the Board of Appeal referred to that communication cannot, in itself, establish the existence of an error of law vitiating that decision.

33      In the third place, the applicant’s argument must be rejected as unfounded in so far as it could be understood as alleging infringement of Article 1 of the Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Paris on 20 March 1952, which enshrines the right to property. Contrary to the applicant’s contention, the Board of Appeal did not ‘extinguish’ the earlier United Kingdom marks relied on in support of its opposition, but drew the legal conclusions from the end of the transition period as regards the ability to rely on those marks as earlier rights protected ‘in a Member State’ for the purposes of Article 8(4) of Regulation 2017/1001.

34      In the fourth place, it is also necessary to reject the applicant’s argument that the Board of Appeal wrongly relied on Article 7(2)(a)(ii) of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation 2017/1001, and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104, p. 1), whereas it should have applied Article 7(2)(d) of that regulation, relating to proof of the continued existence of the earlier right. As EUIPO stated, the reference, in paragraph 22 of the contested decision, to Article 7(2)(a)(ii) of Delegated Regulation 2018/625 constitutes a clerical error. It is clear from the reference made in that paragraph to paragraph 80 of the judgment of 2 December 2020, Monster Energy v EUIPO – Nanjing aisiyou Clothing (Representation of a scratch) (T‑35/20, not published, EU:T:2020:579), that the Board of Appeal in fact referred to Article 7(2)(d) of that regulation. Furthermore, the applicant relies on that provision in support of its argument that the existence of the earlier right must be assessed only at the time of filing of the application for registration. Such an argument must nevertheless be rejected in the light of the considerations set out in paragraph 25.

35      It follows from the foregoing that the Board of Appeal was entitled to find that the earlier rights relied on in support of the opposition no longer constituted, on the date on which it gave its decision, rights protected in a Member State for the purposes of Article 8(4) of Regulation 2017/1001 and that, therefore, the opposition had to be rejected.

36      Accordingly, the single plea in law must be rejected and, consequently, the action must be dismissed as manifestly lacking any foundation in law, without the need to rule on the admissibility of the applicant’s request that the present case be remitted to the Opposition Division.

 Costs

37      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

38      Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by EUIPO.

On those grounds,

THE GENERAL COURT (Fifth Chamber)

hereby orders:

1.      The action is dismissed.

2.      Selimfiber Co. Ltd shall pay the costs.

Luxembourg, 16 September 2026.

*      Language of the case: English.