Judgment_paragraph 45 · Airhole Facemasks, Inc. v European Union Intellectual Property Office (T-107/16)

45It must be borne in mind that the power of the Court to alter decisions pursuant to Article 65(3) of Regulation No 207/2009 does not have the effect of conferring on that Court the power to carry out an assessment on which the Board of Appeal has not yet adopted a position. Exercise of the power to alter decisions must therefore, in principle, be limited to situations in which the Court, after reviewing the assessment made by the Board of Appeal, is in a position to determine, on the basis of the matters of fact and of law as established, what decision the Board of Appeal was required to take (judgment of 5 July 2011, Edwin v OHIM, C‑263/09 P, EU:C:2011:452, paragraph 72; see also, judgment of 28 January 2016, GUGLER, T‑674/13, not published, EU:T:2016:44, paragraph 100 and the case-law cited).