Case C‑597/14 P

European Union Intellectual Property Office (EUIPO)

v

Xavier Grau Ferrer

‛Appeal — EU trade mark — Regulation (EC) No 207/2009 — Article 76(2) — Regulation (EC) No 2868/95 — Rule 50(1), third subparagraph — Figurative mark — Opposition by the proprietor of the earlier trade mark — Proof of the existence, validity and extent of the protection of the earlier trade mark — Consideration by the Board of Appeal of evidence submitted out of time — Rejection of the opposition by the Board of Appeal’

Summary — Judgment of the Court (First Chamber), 21 July 2016

1. EU trade mark — Appeals procedure — Appeal against a decision of the Opposition Division of EUIPO — Examination by the Board of Appeal — Scope — Facts and evidence not produced in support of the opposition within the period prescribed for that purpose — Account taken — Discretion of the Board of Appeal — New evidence — Not included

   (Council Regulation No 207/2009, Art. 76(2); Commission Regulation No 2868/95, Art. 1, Rule 50(1), third para.)

2. Appeal — Ground of appeal — Grounds of a judgment vitiated by an infringement of EU law — Operative part well founded for other legal reasons — Rejection

1.  Article 76(2) of Regulation No 207/2009 on the European Union trade mark, which constitutes the legal basis for Rule 50 of Regulation No 2868/95 implementing Regulation No 40/94, as amended by Commission Regulation No 1041/2005, provides that the European Union Intellectual Property Office may disregard facts or evidence which are not submitted in due time by the parties concerned.

   In that connection, when evidence is produced within the time limit set by EUIPO, the production of supplementary evidence remains possible.

   Article 76(2) of Regulation No 207/2009 must be interpreted in the same way in relation to proof of the existence, validity and scope of protection of a trade mark, since that provision contains a rule which applies horizontally within the scheme of that regulation, inasmuch as it applies irrespective of the nature of the proceedings concerned. It follows that Rule 50 of the Implementing Regulation cannot be interpreted as extending the discretion of the Boards of Appeal to new evidence.

   (see paras 25-27)

2.  See the text of the decision.

   (see para. 29)