Key facts of the case:
(EU trade mark — Opposition proceedings — Application for the EU figurative mark CAFE DEL SOL — Earlier national figurative mark Café del Sol — Failure to submit evidence in the language of the opposition proceedings — Articles 75 and 76 of Regulation (EC) No 207/2009 — Rules 19 and 20 of Regulation (EC) No 2868/95 — Rights of the defence)
Results (sanctions) and key consequences of the case:
THE GENERAL COURT (Fourth Chamber) hereby:
- Annuls the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 16 July 2015 (Case R 1888/2014-5), relating to opposition proceedings between Mr Ramón Guiral Broto and Gastro & Soul GmbH;
- Dismisses the action as to the remainder;
- Orders EUIPO and Mr Guiral Broto each to bear their own costs.
- However, it is also important to bear in mind that the second sentence of Article 75 of Regulation No 207/2009 provides that decisions of EUIPO are to be based only on reasons or evidence on which the parties concerned have had an opportunity to present their comments. That provision constitutes a specific application of the general principle of protection of the rights of the defence, guaranteed, furthermore, by Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, according to which a person whose interests are affected by a decision of a public authority must be given the opportunity effectively to make his point of view known (judgment of 6 September 2012, Storck v OHIM, C‑96/11 P, not published, EU:C:2012:537, paragraph 74). The right to be heard extends to all the matters of fact or of law which form the basis of the decision-making measure (judgment of 26 March 2014, Still v OHIM (Fleet Data Services), T‑534/12 and T‑535/12, not published, EU:T:2014:157, paragraph 31).
- 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 76(2) of Regulation No 207/2009 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 (judgment of 3 October 2013, Rintisch v OHIM, C‑120/12 P, EU:C:2013:638, paragraph 32). Rule 20(1) of Regulation No 2868/95 does not constitute a rule which prevents the Board of Appeal from using the discretion which Article 76(2) of Regulation No 207/2009 confers upon it since that rule must be interpreted in such a way that it is consistent with the superior rules of law set out in Regulation No 207/2009 and Article 41 of the Charter of Fundamental Rights.