Judgment_paragraph 38 · TVR Automotive Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (T-398/13)

38As regards the first part of the second plea in law, alleging failure to take account of the principles of res judicata or non bis in idem and the adage venire contra factum proprium, it should be recalled that settled case-law recognises that the principle of res judicata, which prohibits a final judicial decision being called into question, is not applicable so far as concerns the relationship between a final decision in opposition proceedings and an application for a declaration of invalidity, given, inter alia, first, that proceedings before OHIM are administrative and not judicial and, second, that the relevant provisions of Regulation No 207/2009, namely Article 53(4) and Article 100(2), lay down no rule to that effect (judgments of 14 October 2009 in Ferrero v OHIM — Tirol Milch (TiMi KiNDERJOGHURT), T‑140/08, ECR, EU:T:2009:400, paragraph 34; 22 November 2011 in mPAY24 v OHIM — Ultra (MPAY24), T‑275/10, EU:T:2011:683, paragraph 15; and 23 September 2014 in Tegometall International v OHIM — Irega (MEGO), T‑11/13, EU:T:2014:803, paragraph 12). As OHIM contends, that also applies in the converse situation concerning the relationship between proceedings leading to a final decision on revocation or on an application for a declaration of invalidity and opposition proceedings. The fact remains that the findings made in the final decision on revocation or the final decision in respect of an application for a declaration of invalidity cannot be entirely ignored by OHIM in the context of a decision in opposition proceedings between the same parties, relating to the same subject-matter and based on the same grounds, as in the present case, on proof of genuine use of a Community trade mark, provided that those findings or decided issues are not affected by new facts, new evidence or new grounds. That assertion is no more than a specific expression of the case-law according to which the previous decisions of OHIM are a factor which may be taken into consideration in assessing whether a sign is suitable for registration (see, to that effect and by analogy, judgments in TiMi KiNDERJOGHURT, EU:T:2009:400, paragraph 35, and MPAY24, EU:T:2011:683, paragraph 17).