23The Court of First Instance upheld the first plea and annulled the contested decision on that account without giving judgment on the other pleas raised in the action. In that regard, it held the following, inter alia, in paragraphs 25 to 30 of the judgment under appeal:(25) It is appropriate to note, as a preliminary point, that the evidence adduced by the applicant before the Board of Appeal consists of a declaration in lieu of an oath from the applicants managing director and a list of the applicants customers.(26) Those documents, relating to the degree of use of the applicants mark, were produced by the applicant in support of its line of argument put forward previously before the Opposition Division at that point based solely on considerations relating to the lack of distinctive character of the applicant's mark to the effect that that mark was highly distinctive and should therefore have greater protection.(27) The Board of Appeal, in paragraphs 10 to 12 of the contested decision, and then OHIM, in paragraph 30 of its response, considered that that new statement of facts could not be taken into account, because it was made after the expiry of the time-limits set by the Opposition Division.(28) It must be stated, however, that that position is not compatible with the continuity in terms of their functions between the departments of OHIM as affirmed by the Court of First Instance as regards both ex parte proceedings (judgment in Case T-163/98 Procter & Gamble v OHIM (BABY-DRY) [1999] ECR II-2383, paragraphs 38 to 44, not overturned on this point by the Court of Justice in Case C-383/99 P Procter & Gamble v OHIM... [2001] ECR I-6251, and Case T-63/01 Procter & Gamble v OHIM (Soap bar shape) [2002] ECR II-5255, paragraph 21) and inter partes proceedings (Case T-308/01 Henkel v OHIM — LHS (UK) (KLEENCARE) [2003] ECR II-3253, paragraphs 24 to 32).(29) It has been held that it follows from the continuity in terms of their functions between the departments of OHIM that, within the scope of application of Article 74(1) in fine of Regulation No 40/94, the Board of Appeal is required to base its decision on all the matters of fact and of law which the party concerned introduced either in the proceedings before the department which heard the application at first instance or, subject only to Article 74(2), in the appeal (KLEENCARE, paragraph 32). Thus, contrary to OHIM's assertions concerning inter partes proceedings, the continuity in terms of their functions between the various departments of OHIM does not mean that a party which, before the department hearing the application at first instance, did not produce certain matters of fact or of law within the time-limits laid down before that department would not be entitled, under Article 74(2) of Regulation No 40/94, to rely on those matters before the Board of Appeal. On the contrary, the continuity in terms of functions means that such a party is entitled to rely on those matters before the Board of Appeal, subject to compliance with Article 74(2) of that regulation before the Board.(30) Accordingly, in the present case, since the disputed factual evidence was not submitted out of time for the purposes of Article 74(2) of Regulation No 40/94, but was annexed to the statement lodged by the applicant before the Board of Appeal on 30 October 2000, that is, within the four-month time-limit laid down in Article 59 of Regulation No 40/94, that board could not refuse to take account of that evidence.’
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