1

By his appeal, Mr Rintisch seeks to have set aside the judgment of the General Court of the European Union of 16 December 2011 in Case T‑109/09 Rintisch v OHIM – Valfleuri Pâtes alimentaires (PROTIVITAL) (‘the judgment under appeal’), by which that court dismissed his action for the annulment of the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 21 January 2009 (Case R 1660/2007-4) (‘the contested decision’), relating to opposition proceedings between the appellant and Valfleuri Pâtes alimentaires SA (‘Valfleuri’).

2

Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) was repealed and replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1), which entered into force on 13 April 2009. However, having regard to the material time, the present dispute continues to be governed by Regulation No 40/94.

3

The rules implementing Regulation No 40/94 are laid down by Commission Regulation (EC) No 2868/95 of 13 December 1995 (OJ 1995 L 303, p. 1), as amended by Commission Regulation (EC) No 1041/2005 of 29 June 2005 (OJ 2005 L 172, p. 4) (‘the Implementing Regulation’).

4

Article 74(2) of Regulation No 40/94 states that ‘[t]he Office may disregard facts or evidence which are not submitted in due time by the parties concerned’.

5

Rule 19 of the Implementing Regulation provides:

...

6

Rule 20 of the Implementing Regulation, entitled ‘Examination of the opposition’, provides in paragraph 1:

‘If until expiry of the period referred to in Rule 19(1) the opposing party has not proven the existence, validity and scope of protection of his earlier mark or earlier right, as well [as] his entitlement to file the opposition, the opposition shall be rejected as unfounded.’

7

Rule 50 of the Implementing Regulation, entitled ‘Examination of appeals’, provides in paragraph 1:

‘Unless otherwise provided, the provisions relating to proceedings before the department which has made the decision against which the appeal is brought shall be applicable to appeal proceedings mutatis mutandis.

...

Where the appeal is directed against a decision of an Opposition Division, the Board shall limit its examination of the appeal to facts and evidence presented within the time-limits set in or specified by the Opposition Division in accordance with [Regulation No 40/94] and these Rules, unless the Board considers that additional or supplementary facts and evidence should be taken into account pursuant to Article 74(2) of the Regulation.’

8

Recital 7 in the preamble to Regulation No 1041/2005 states:

‘The provisions concerning the opposition procedure should be reframed completely [so] as to specify the admissibility requirements, to specify clearly the legal consequences of deficiencies and to bring the provisions in the chronological order of the proceedings.’

9

The background to the dispute was set out by the General Court in paragraphs 1 to 16 of the judgment under appeal in the following terms:

...

...

10

By application lodged at the General Court Registry on 17 March 2009, Mr Rintisch brought an action seeking the annulment of the contested decision.

11

In support of that action, he relied on three pleas in law, only the second of which is at issue in this appeal. That plea alleged infringement by the Board of Appeal of Article 74(2) of Regulation No 40/94 and misuse of powers.

12

The General Court noted, first, in paragraphs 31 and 32 of the judgment under appeal – referring to paragraph 42 of the judgment in Case C-29/05 P OHIM v Kaul [2007] ECR I-2213 – that it is clear from Article 74(2) of Regulation No 40/94 that, as a general rule and unless otherwise provided, 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 that regulation and that OHIM is in no way prohibited from taking account of facts and evidence which are submitted or produced late. The General Court then rejected the first part of the plea thus put forward by Mr Rintisch, finding essentially as follows, in paragraphs 33 to 42 of the judgment under appeal:

...

13

The General Court then rejected the second part of the second plea in law, on the following ground:

14

Since it also rejected the other pleas in law relied on by Mr Rintisch in support of his action, the General Court dismissed the action.

15

By his appeal, Mr Rintisch asks the Court of Justice to set aside the judgment under appeal and order OHIM to pay the costs.

16

OHIM and Valfleuri contend that the Court should dismiss the appeal and order Mr Rintisch to pay the costs.

17

In support of his appeal, the appellant relies on two grounds of appeal, alleging infringement of Article 74(2) of Regulation No 40/94 and misuse of power by the Board of Appeal, respectively.

18

Mr Rintisch submits that the General Court misinterpreted Article 74(2) of Regulation No 40/94 and Rule 50(1) of the Implementing Regulation.

19

He thus argues that the General Court disregarded the third subparagraph of Rule 50(1) of the Implementing Regulation, although the latter is a special provision for the examination of appeals which expressly provides for the application of Article 74(2) of Regulation No 40/94 and therefore confers on the Board of Appeal a discretion to decide whether additional or supplementary facts and evidence should be taken into account. In addition, the General Court erred in failing to distinguish between new facts and the late submission of additional or supplementary facts and evidence within the meaning of the third subparagraph of Rule 50(1) of the Implementing Regulation.

20

OHIM disputes the interpretation of the relevant provisions put forward by the appellant. It contends that the General Court correctly pointed out that Rule 20(1) of the Implementing Regulation must be regarded as a provision to the contrary, as referred to in the judgment in OHIM v Kaul, inasmuch as it is a mandatory provision linked to an absolute time-limit.

21

Valfleuri contends that Rules 19(4) and 20(1) of the Implementing Regulation are express and mandatory provisions which rule out the possibility of OHIM extending the period available to the opponent to establish the existence and validity of the earlier marks. Consequently, OHIM does not, in the situation in question, have the discretion provided for in Article 74(2) of Regulation No 40/94.

22

Article 74(2) of Regulation No 40/94 provides that OHIM may disregard facts or evidence which are not submitted in due time by the parties concerned.

23

As the Court has held, it results from the wording of that provision 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 (OHIM v Kaul, paragraph 42, and Case C‑621/11 P New Yorker SHK Jeans v OHIM [2013] ECR, paragraph 22).

24

In stating that the latter ‘may’, in such a case, decide to disregard evidence, Article 74(2) grants OHIM broad discretion to decide, while giving reasons for its decision in that regard, whether or not to take such evidence into account (OHIM v Kaul, paragraph 43, and New Yorker SHK Jeans v OHIM, paragraph 23).

25

Since the first ground of appeal put forward by the appellant relates only to the discretion which he claims OHIM’s Board of Appeal enjoys, it is appropriate, in order to determine whether there is a provision to the contrary liable to preclude such discretion, to refer to the rules governing the appeal proceedings.

26

In that regard, the first subparagraph of Rule 50(1) of the Implementing Regulation lays down that, unless otherwise provided, the provisions relating to proceedings before the department which has made the decision against which the appeal is brought are to be applicable to appeal proceedings mutatis mutandis.

27

The General Court found, in paragraph 37 of the judgment under appeal, that it followed from that provision that the Board of Appeal was bound to apply Rule 20(1) of the Implementing Regulation and, therefore, to find that the submission of evidence after the expiry of the period specified for that purpose by OHIM, in order to establish the existence, validity and scope of protection of the earlier mark, entails the rejection of the opposition, and the Board of Appeal has no discretion in that regard.

28

In so doing, the General Court adopted an incorrect interpretation of Rule 50(1) of the Implementing Regulation, which misconstrues the scope of the third subparagraph of that provision.

29

Although the first subparagraph of Rule 50(1) lays down the principle that the provisions relating to proceedings before the department which has made the decision against which the appeal is brought are to be applicable to appeal proceedings mutatis mutandis, the third subparagraph of Rule 50(1) constitutes a special rule derogating from that principle. That special rule is specific to the appeal proceedings brought against the Opposition Division’s decision and specifies the rules, before the Board of Appeal, governing the facts and evidence submitted after the expiry of the time-limits set or specified at first instance.

30

The third subparagraph of Rule 50(1) of the Implementing Regulation must therefore be applied, at this particular stage of the appeal proceedings against the Opposition Division’s decision, in place of the provisions relating to the proceedings before that division, which include Rule 20(1) of the Implementing Regulation.

31

It must be emphasised here that that special rule was introduced in the Implementing Regulation when it was amended by Regulation No 1041/2005, which, according to recital 7 thereof, seeks to specify clearly the legal consequences of procedural deficiencies in the opposition proceedings. That statement confirms that the consequences, before the Board of Appeal, of the delay in the submission of evidence before the Opposition Division must be determined on the basis of that rule.

32

Under the third subparagraph of Rule 50(1) of the Implementing Regulation, where the appeal is directed against a decision of an Opposition Division, the Board of Appeal must limit its examination of the appeal to facts and evidence presented within the time-limits set in or specified by the Opposition Division, unless the Board considers that additional or supplementary facts and evidence must be taken into account pursuant to Article 74(2) of Regulation No 40/94.

33

The Implementing Regulation therefore expressly provides that the Board of Appeal enjoys, when examining an appeal directed against a decision of the Opposition Division, the discretion deriving from the third subparagraph of Rule 50(1) of the Implementing Regulation and from Article 74(2) of Regulation No 40/94 to decide whether or not to take into account additional or supplementary facts and evidence which were not presented within the time-limits set or specified by the Opposition Division.

34

Consequently, in finding, in paragraph 42 of the judgment under appeal, that Rule 20(1) of the Implementing Regulation constituted a provision to the contrary which prevented evidence submitted late to OHIM by the appellant from being taken into account by the Board of Appeal, with the result that the Board of Appeal did not have any discretion under Article 74(2) of Regulation No 40/94 for the purposes of taking into account that evidence, the General Court committed an error of law which vitiates its judgment.

35

However, it should be pointed out that where the grounds of a judgment of the General Court disclose an infringement of EU law but the operative part of the judgment is shown to be well founded for other legal reasons, the appeal must be dismissed (Case C-210/98 P Salzgitter v Commission [2000] ECR I-5843, paragraph 58, and Case C-352/09 P ThyssenKrupp Nirosta v Commission [2011] ECR I-2359, paragraph 136).

36

It follows from the considerations in paragraph 34 of this judgment that the Board of Appeal erred in law in finding, in paragraphs 38 to 40 of the contested decision, that it followed from Rule 20(1) of the Implementing Regulation that it did not have any discretion to decide whether or not it was necessary to take into account evidence which was submitted late of the existence, validity and scope of protection of the earlier mark.

37

None the less, it must be pointed out that the Board of Appeal stated, in paragraph 42 of the contested decision, that, if it were held that it enjoyed a discretion to decide whether or not it is necessary to take into account documents submitted late, it would exercise that discretion against the opponent. Then, in paragraphs 43 to 46 of that decision, it set out the reasons for that conclusion.

38

Those reasons – given as alternative grounds by the Board of Appeal for refusing to take into account the evidence submitted late by Mr Rintisch – are capable of remedying the defect vitiating the contested decision only if they permit the inference that the Board of Appeal actually exercised its discretion under Article 74(2) of Regulation No 40/94, for the purposes of deciding, in a reasoned manner and having regard to all the relevant circumstances, whether it was necessary to take into account the evidence submitted to it late, in order to give its decision (see, to that effect, Case C‑610/11 P Centrotherm Systemtechnik v OHIM and centrotherm Clean Solutions [2013] ECR, paragraph 110).

39

In that regard, the Court has held, inter alia, that where OHIM is called upon to give judgment in the context of opposition proceedings, taking into account facts or evidence produced late is particularly likely to be justified where OHIM considers, first, that the material which has been produced late is, on the face of it, likely to be genuinely relevant to the outcome of the opposition brought before it and, second, that the stage of the proceedings at which that late submission takes place and the circumstances surrounding it do not argue against such matters being taken into account (OHIM v Kaul, paragraph 44, and Centrotherm Systemtechnik v OHIM and centrotherm Clean Solutions, paragraph 113).

40

In this case, since Mr Rintisch based his opposition, inter alia, on three registered German marks, the evidence of the existence, validity and scope of protection of those marks which he had to submit during the opposition proceedings is set out precisely and exhaustively in Rule 19(2)(a)(ii) of the Implementing Regulation. Mr Rintisch was therefore deemed to be aware, even before filing his opposition, of the precise documents which he had to produce in support of it. Consequently, the Board of Appeal must, in those circumstances, exercise its discretion restrictively and may allow the late submission of such evidence only if the surrounding circumstances are likely to justify the appellant’s delay in the submission of proof required of him.

41

In stating the reasons for its decision, the Board of Appeal emphasised in particular that Mr Rintisch was in possession of the proof of renewal of the marks at issue as from 15 January 2007 and that he did not put forward any reasons why he withheld that document until October 2007.

42

It is therefore apparent from the contested decision that the circumstances surrounding the late submission of the evidence of the existence, validity and scope of protection of the marks at issue are not capable of justifying the appellant’s delay in the submission of proof required of him.

43

The fact that Mr Rintisch produced, within the time-limit set by the Opposition Division, extracts from the Deutsches Patent- und Markenamt online register referring to the renewal of the marks at issue, in a language other than that of the language of the proceedings, cannot call in question that analysis, since it is clear from Rule 19(4) of the Implementing Regulation that OHIM must not take into account documents that have not been submitted, or that have not been translated into the language of the proceedings, within that time-limit.

44

It follows that the Board of Appeal was justified in refusing to take into account the evidence submitted by Mr Rintisch after the expiry of the periods specified for that purpose by the Opposition Division, and there was no need for it to rule on the possible relevance of that evidence or to determine whether the stage of the proceedings at which that late submission takes place precludes such evidence from being taken into account.

45

Contrary to Mr Rintisch’s claims, the Board of Appeal is not required, when exercising its discretion under Article 74(2) of Regulation No 40/94, to examine the three criteria referred to in paragraph 39 above when one of those criteria alone is sufficient to establish that it must not take into account the evidence submitted late at issue (see, to that effect, order of 4 March 2010 in Case C‑193/09 P Kaul v OHIM, paragraph 38).

46

In those circumstances, the error in law identified in paragraph 34 above, which vitiates the judgment under appeal, has no effect on the examination of the appeal, since the General Court’s rejection, in paragraph 47 of that judgment, of the first part of the second plea in law, alleging infringement of Article 74(2) of Regulation No 40/94, is well founded on legal grounds other than those given by the General Court, and cannot therefore lead to the setting aside of that judgment.

47

Mr Rintisch submits that the General Court underestimated the fact that the Board of Appeal had misused its powers.

48

OHIM states that no arguments supporting the second ground of appeal can be found in the appeal.

49

As regards the second ground of appeal, it must be noted, first, that the appellant confines himself to general assertions and in no way identifies the paragraphs of the judgment under appeal which he criticises and, second, that he does not state the legal arguments relied on in support of that ground of appeal.

50

According to consistent case-law, it follows from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court, and Article 112(1)(c) of the Rules of Procedure of the Court, in the version in force at the date when the appeal was brought (now Article 168(1)(d) of the Rules of Procedure of the Court), that an appeal must state precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or plea concerned is inadmissible (Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I-5425, paragraph 426, and Case C-487/06 P British Aggregates v Commission [2008] ECR I-10515, paragraph 121).

51

Since the second ground of appeal put forward by Mr Rintisch in support of his appeal does not meet those requirements, it must therefore be rejected as being inadmissible.

52

As none of the grounds relied on by the appellant in support of his appeal can be upheld, the appeal must be dismissed.

53

In accordance with Article 184(2) of the Rules of Procedure of the Court, where the appeal is unfounded, the Court is to make a decision as to costs. Under Article 138(1) of those rules, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

54

Since OHIM and Valfleuri have applied for costs and the appellant has been unsuccessful, the latter must be ordered to pay the costs.

On those grounds, the Court (Fourth Chamber) hereby: