Article 27

1. In ex parte proceedings, and with respect to those goods or services which form part of the subject matter of the appeal, the Board of Appeal, in compliance with Article 45(3) of Regulation (EU) 2017/1001, shall proceed in accordance with Article 42 of Regulation (EU) 2017/1001 where it raises a ground for refusal of the trade mark application which had not already been invoked in the decision subject to appeal in application of that provision.

2. In inter partes proceedings, the examination of the appeal and, as the case may be, the cross appeal, shall be restricted to the grounds invoked in the statement of grounds and, as the case may be, in the cross appeal. Matters of law not raised by the parties shall be examined by the Board of Appeal only where they concern essential procedural requirements or where it is necessary to resolve them in order to ensure a correct application of Regulation (EU) 2017/1001 having regard to the facts, evidence and arguments presented by the parties.

3. The examination of the appeal shall include the following claims or requests provided that they have been raised in the statement of grounds of the appeal or, as the case may be, in the cross appeal and provided that they were raised in due time in the proceedings before the instance of the Office which adopted the decision subject to appeal:

(a) distinctiveness acquired through use as referred to in Article 7(3) and Article 59(2) of Regulation (EU) 2017/1001;

(b) recognition of the earlier trade mark on the market acquired through use for the purposes of Article 8(1)(b) of Regulation (EU) 2017/1001;

(c) proof of use pursuant to Article 47(2) and (3) of Regulation (EU) 2017/1001 or Article 64(2) and (3) of Regulation (EU) 2017/1001.

4. In accordance with Article 95(2) of Regulation (EU) 2017/1001, the Board of Appeal may accept facts or evidence submitted for the first time before it only where those facts or evidence meet the following requirements:

(a) they are, on the face of it, likely to be relevant for the outcome of the case; and

(b) they have not been produced in due time for valid reasons, in particular where they are merely supplementing relevant facts and evidence which had already been submitted in due time, or are filed to contest findings made or examined by the first instance of its own motion in the decision subject to appeal.

5. The Board of Appeal shall, at the latest in its decision on the appeal and, as the case may be, the cross appeal, decide on requests for restriction, division or partial surrender of the contested mark declared during the appeal proceedings by the applicant or the proprietor in accordance with Articles 49, 50 or 57 of Regulation (EU) 2017/1001. Where the Board of Appeal accepts the restriction, division or partial surrender, it shall without delay inform the department in charge of the Register and the departments dealing with parallel proceedings involving the same mark accordingly.