Judgment_paragraph 21 · The Sunrider Corporation v European Union Intellectual Property Office (T-203/02)

21It must be stated at the outset that the Court of First Instance has already held that the extent of the examination which the Board of Appeal is required to conduct with regard to the decision under appeal (in this instance the Opposition Division's decision) does not depend upon whether or not the party bringing the appeal has raised a specific ground of appeal with regard to that decision, criticising the interpretation or application of a provision by the department at OHIM which heard the application at first instance, or upon that department's assessment of a piece of evidence (see, to that effect, Case T-308/01 Henkel v OHIM — LHS (UK) (KLEENCARE) [2003] ECR II-3253, paragraph 32). Therefore, even if the party bringing the appeal before the Board of Appeal of OHIM has not raised a specific plea, the Board of Appeal is none the less bound to examine whether or not, in the light of all the relevant matters of fact and of law, a new decision with the same operative part as the decision under appeal may be lawfully adopted at the time of the appeal ruling (KLEENCARE, paragraph 29). That examination must include consideration of whether, in the light of the facts and evidence put forward by the other party to the proceedings before the Board of Appeal, that party has furnished proof of genuine use, either by the proprietor of the earlier trade mark or by an authorised third party, for the purposes of Article 43(2)( and (3) and Article 15(3) of Regulation No 40/94. It follows that the first part of this plea is admissible.

The Sunrider Corporation v European Union Intellectual Property Office (T-203/02)

Key facts

History · 1 version

Connections