Board of Appeal may take account of additional evidence of use which is submitted after the time period set by the Board
05-07-2018 Print this page
General Court has rightly found that the Board of Appeal is entitled to take account of additional evidence of use which is submitted after the time period set by the Board: addition to the evidence adduced within the time period set by EUIPO under Rule 40(6) of the Implementing Regulation which is submitted after that time remains possible, Rule 40(6) of the Implementing Regulation does not constitute a provision contrary to Article 76(2) of the EU Trade Mark Regulation, with the result that the Board of Appeal is not entitled to take account of additional evidence of use of the earlier mark in question. Cancellation Division cannot examine evidence of genuine use of the earlier mark in respect of the services for which it was considered by the Board of Appeal that that evidence had not been adduced.
In this trade mark appeal mobile.de challenges the judgment of the General Court of 12 May 2016. In those proceedings, mobile.de contested two decisions of the First Board of Appeal of the European Intellectual Property Office. The General Court rejected mobile.de’s case in its entirety. Mobile.de now raises six grounds in support of its appeal against that ruling.
The General Court has rightly found that the Board of Appeal is entitled to take account of additional evidence of use which is submitted after the time period set by the Board. Addition to the evidence adduced within the time period set by EUIPO under Rule 40(6) of the Implementing Regulation which is submitted after that time remains possible. Rule 40(6) of the Implementing Regulation does not constitute a provision contrary to Article 76(2) of the EU Trade Mark Regulation, with the result that the Board of Appeal is not entitled to take account of additional evidence of use of the earlier mark in question.
The Cancellation Division cannot examine evidence of genuine use of the earlier mark in respect of the services for which it was considered by the Board of Appeal that that evidence had not been adduced.
IPPT20180228, CJEU, mobile.de v EUIPO
