Language of document : ECLI:EU:C:2013:639

Case C‑121/12 P

Bernhard Rintisch

v

Office for Harmonisation in the Internal Market
(Trade Marks and Designs) (OHIM)

(Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 74(2) — Regulation (EC) No 2868/95 — First and third subparagraphs of Rule 50(1) — Opposition by the proprietor of an earlier trade mark — Existence of the mark — Evidence submitted in support of the opposition after the expiry of the period set for that purpose — Failure to take account thereof — Discretion of the Board of Appeal — Provision to the contrary — Circumstances precluding additional or supplementary evidence from being taken into account)

Summary — Judgment of the Court (Fourth Chamber), 3 October 2013

1.        Community trade mark — Appeals procedure — Appeal brought against a decision of the Opposition Division of OHIM — Examination by the Board of Appeal — Scope — Facts and evidence not submitted in support of the opposition within the prescribed time-limit — Account taken — Discretion of the Board of Appeal — Absence of any provision to the contrary

(Council Regulation No 40/94, Art. 74(2); Commission Regulation No 2868/95, Art. 1, Rules 20(1) and 50(1))

2.        Community trade mark — Appeals procedure — Appeal brought against a decision of the Opposition Division of OHIM — Examination by the Board of Appeal — Scope — Facts and evidence not submitted in support of the opposition within the prescribed time-limit — Account taken — Discretion of the Board of Appeal

(Council Regulation No 40/94, Art. 74(2); Commission Regulation No 2868/95, Art. 1, Rule 19(2)(a)(ii))

3.        Appeals — Grounds — Lack of specific criticism of a point of the General Court’s reasoning and of legal arguments in support of the appeal — Inadmissibility

(Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 112(1)(c))

1.        Article 74(2) of Regulation No 40/94 on the Community trade mark provides that the Office for Harmonisation in the Internal Market (Trade Marks and Designs) may disregard facts or evidence which are not submitted in due time by the parties concerned. 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. 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.

Although the first subparagraph of Rule 50(1) of Regulation No 2868/95 implementing Regulation No 40/94 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. The third subparagraph of Rule 50(1) of Regulation No 2868/95 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 Regulation No 2868/95.

Under the third subparagraph of Rule 50(1) of Regulation No 2868/95, 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 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. Regulation No 2868/95 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 Regulation No 2868/95 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.

(see paras 22-24, 29, 30, 32, 33)

2.        Article 74(2) of Regulation No 40/94 on the Community trade mark provides that the Office for Harmonisation in the Internal Market (Trade Marks and Designs) may disregard facts or evidence which are not submitted in due time by the parties concerned. 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. 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.

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.

In the context of an opposition based on a registered national trade mark, the evidence of the existence, validity and scope of protection of that mark to be submitted during the opposition proceedings is set out precisely and exhaustively in Rule 19(2)(a)(ii) of Regulation No 2868/95 implementing Regulation No 40/94. Every appellant is 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.

In addition, 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 above when one of those criteria alone is sufficient to establish that it must not take into account the evidence submitted late.

(see paras 22-24, 39, 40, 45)

3.        See the text of the decision.

(see para. 50)