Community trade mark – Appeals procedure
(Council Regulation No 40/94, Arts 59 and 74(2))
When hearing an appeal against a decision rejecting an opposition to the registration of a sign as a Community trade mark, the Board of Appeal has a discretion, subject to stating reasons for its decision in that regard, as to whether or not to take account in reaching its decision of facts or evidence which the party opposing registration presents for the first time in the written statement in support of its appeal, with the result that it is neither bound to take account of such facts and evidence, nor can consideration of such facts and evidence be automatically excluded.
First, it is apparent from the wording of Article 74(2) of Regulation No 40/94 on the Community trade mark, according to which OHIM may disregard facts which were not submitted or evidence which was not produced in due time by the parties, 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 40/94 and that OHIM is in no way prohibited from taking account of facts and evidence which are submitted or produced late. However, it is equally apparent from that wording that a party has no unconditional right to have facts and evidence submitted out of time taken into consideration by OHIM.
Second, no reason of principle related to the nature of the proceedings under way before the Board of Appeal or to the jurisdiction of that department precludes it, for the purpose of giving judgment on the appeal before it, from taking into account facts and evidence produced for the first time at the appeal stage.
Third, Article 59 of Regulation No 40/94, which lays down the conditions for bringing an appeal before the Board of Appeal, cannot be interpreted as starting a new time‑limit for the person bringing such an appeal in which to submit facts and evidence in support of his opposition, with the result that such facts and evidence cannot be regarded as having been submitted ‘in due time’ within the meaning of Article 74(2) of the regulation.
(see paras 41-43, 49, 60-62, 64, 67-68)