The General Court correctly held that, in the context of the invalidity proceedings based on the absolute ground for refusal, the EUIPO Board of Appeal should not, in all circumstances, rule that the that evidence submitted for the first time before the Board of Appeal must be regarded as belated: it follows from case law that no reason of principle opposes to this.
Appeal by EUIPO to set aside the judgment of 28 September 2016 of the General Court of the European Union in the context of invalidity proceedings between European Food and Nestlé concerning the EU trade mark FITNESS. The Cancellation Division of the EUIPO had rejected the application for the annulment of Nestlé’s trade mark and the fourth Board of Appeal dismissed the appeal. The General Court annulled the latter decision in the judgment under appeal.
The appeal is dismissed. It is true that the General Court erred in law in stating that the EU Trade Mark Regulation does not contain any provision fixing a time-limit for the submission of evidence, but since the operative part is shown to be well founded for other legal reasons, the appeal must be dismissed, according to the Court. The Court considers that the General Court didn’t based the annulment of the decision at issue on the fact that there was no time limit for the submission of evidence, but on the fact that the Board of Appeal erred in deciding that the evidence produced by the applicant for the first time before the Board of Appeal did not have to be taken into consideration because of its late submission. According to the Court, the General Court correctly held that the Board of Appeal should not, in all circumstances, consider that the evidence submitted to it for the first time was out of time.