Societe des produits Nestle v EUIPO - European Food (FITNESS) (EU trade mark - - Judgment) [2023] EUECJ T-519/22 (07 June 2023)

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(EU trade mark – Procedure for the revocation of decisions or the cancellation of entries – Revocation of a decision containing an obvious error attributable to EUIPO – Article 103(1) of Regulation (EU) 2017/1001 – No obvious error)

Société des produits Nestlé SA, established in Vevey (Switzerland), represented by A. Jaeger-Lenz, A. Lambrecht, and A.-C. Salger, lawyers,

European Union Intellectual Property Office (EUIPO), represented by V. Ruzek, acting as Agent,

the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being

European Food SA, established in Păntășești (Romania), represented by I. Speciac, lawyer,

composed of M.J. Costeira, President, U. Öberg and P. Zilgalvis (Rapporteur), Judges,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

1 By its action on the basis of Article 263 TFEU, the applicant, Société des produits Nestlé SA, seeks annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 27 June 2022 (Case R 894/2020-1) (‘the contested decision’).

2 On 20 November 2001, the applicant filed an application with EUIPO for registration of an EU trade mark for the word sign FITNESS, pursuant to Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended, itself replaced by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1)).

3 The goods in respect of which registration was sought are in Classes 29, 30 and 32 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended.

4 The trade mark application was published in Community Trade Marks Bulletin No 3/2003 of 6 January 2003. The mark was registered on 30 May 2005 under Number 2470326.

5 On 2 September 2011, the intervener, European Food SA, filed an application for a declaration that the contested mark was invalid in respect of all the goods covered by that mark.

6 The grounds relied on in support of the application for a declaration of invalidity were those set out in Article 52(1)(a) of Regulation No 207/2009 (now Article 59(1)(a) of Regulation 2017/1001), read in conjunction with Article 7(1)(b) and (c) of that regulation (now Article 7(1)(b) and (c) of Regulation 2017/1001).

7 On 18 October 2013, the Cancellation Division rejected the application for a declaration of invalidity in its entirety.

8 On 16 December 2013, the intervener filed an appeal against the decision of the Cancellation Division. During the appeal proceedings, the intervener submitted further evidence in support of its claim that the term ‘fitness’ had a descriptive content for the goods at issue.

9 By decision of 19 June 2015 in Case R 2542/2013-4, the Fourth Board of Appeal of EUIPO dismissed the appeal. In particular, it rejected as belated, without taking it into consideration, the evidence submitted for the first time before it.

10 By application lodged at the Registry of the General Court on 19 August 2015, the intervener brought an action against the decision of the Fourth Board of Appeal.

11 By judgment of 28 September 2016, European Food v EUIPO – Société des produits Nestlé (FITNESS) (T‑476/15, EU:T:2016:568; ‘the first annulment judgment’), the Court annulled the decision of the Fourth Board of Appeal. It held that the Board of Appeal had erred in law by finding that the evidence produced by the intervener for the first time before the Board of Appeal was not to be taken into consideration because of its late submission.

12 EUIPO brought an appeal against the first annulment judgment. By judgment of 24 January 2018, EUIPO v European Food (C‑634/16 P, EU:C:2018:30; ‘the judgment on appeal’), the Court of Justice dismissed the appeal.

13 By decision of 6 June 2018 in Case R 755/2018-2, the Second Board of Appeal annulled the decision of the Cancellation Division. In particular, it held that it followed from the first annulment judgment and the judgment on appeal that it was required to examine the appeal before it by taking into account the evidence that had been filed by the intervener for the first time before the Fourth Board of Appeal in Case R 2542/2013-4. Taking account of that evidence, the Board of Appeal found that the contested mark was descriptive and devoid of any distinctive character.

14 By application lodged at the General Court Registry on 11 September 2018, the applicant brought an action against the decision of the Second Board of Appeal.

15 By judgment of 10 October 2019, Société des produits Nestlé v EUIPO – European Food (FITNESS) (T‑536/18, not published, EU:T:2019:737; ‘the second annulment judgment’), the Court annulled the decision of the Second Board of Appeal. In particular, it held that the Second Board of Appeal had erroneously found that it was apparent from the first annulment judgment and the judgment on appeal that it was required to take into account the evidence submitted by the intervener for the first time before the Fourth Board of Appeal.

16 The intervener lodged an appeal against the second annulment judgment. By order of 18 March 2020, European Food v EUIPO (C‑908/19 P, not published, EU:C:2020:212), the Court of Justice did not allow the appeal to proceed.

17 By decision of 12 October 2021 (‘the 2021 decision’), the First Board of Appeal of EUIPO dismissed the appeal filed by the intervener. As regards the evidence submitted before the Fourth Board of Appeal, it found that the intervener had not adequately justified the late submission of that evidence and that, consequently, it was obliged to exercise its discretion negatively and not accept it.

18 On 24 December 2021, the intervener brought an action before the Court against the 2021 decision, registered as Case T‑799/21.

19 By a communication dated 15 February 2022, the Board of Appeal informed the parties of its intention to revoke the 2021 decision, pursuant to Article 103 of Regulation 2017/1001.

20 By the contested decision, the First Board of Appeal revoked the 2021 decision. First, it found that the approach adopted in that decision – whereby the third subparagraph of Rule 50(1) of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Regulation No 40/94 (OJ 1995 L 303, p. 1) was applicable by analogy in the context of invalidity proceedings based on absolute grounds – was clearly erroneous, since it was apparent from the judgment on appeal that that provision was not applicable in the context of invalidity proceedings based on absolute grounds for invalidity. Second, the Board of Appeal found that the reference in paragraphs 57 and 58 of the 2021 decision to the judgment of 22 September 2011, Cesea Group v OHIM – Mangini & C. (Mangiami) (T‑250/09, not published, EU:T:2011:516), was also erroneous since that judgment had relied on Rule 22(2) of Regulation No 2868/95, which is a lex specialis applying specifically to proof of use and which cannot therefore be transposed to invalidity proceedings.

– order the applicant to pay the costs incurred by EUIPO in the event of a hearing being held.

23 The intervener contends, in essence, that the Court should dismiss the action.

24 In support of the action, the applicant relies on three pleas in law, alleging, first, infringement of Article 103(1) of Regulation 2017/1001, read in conjunction with Article 70 of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation 2017/1001 and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104, p. 1); second, infringement of Article 72(6) of Regulation 2017/1001; and third, infringement of Article 94(1) of Regulation 2017/1001, read in conjunction with Article 70 of Delegated Regulation 2018/625.

The first plea: infringement of Article 103(1) of Regulation 2017/1001, read in conjunction with Article 70 of Delegated Regulation 2018/625

25 The applicant submits that the revocation of the 2021 decision pursuant to Article 103(1) of Regulation 2017/1001 is unlawful. In that regard, the misquotation by the Board of Appeal of Rule 50(1) of Regulation No 2868/95 and of the case-law relating to Rule 22(2) of that regulation cannot be regarded as an obvious error within the meaning of Article 103(1) of Regulation 2017/1001 and does not in itself justify the revocation of the 2021 decision. According to the applicant, the concept of ‘obvious error’ is two-tiered: the error must be readily detectable and of such exceptional gravity that it renders the operative part of the earlier decision implausible. In the present case, the findings of the Board of Appeal set out in paragraphs 60 to 62 of the 2021 decision do not rely on the application by analogy of Rule 50(1) of Regulation 2868/95. The reference to that provision is a purely formal mistake and has no bearing on the correctness or plausibility of the operative part of the 2021 decision.

26 Furthermore, the applicant submits that, in paragraphs 61 and 62 of the 2021 decision, the Board of Appeal correctly put particular emphasis on there being an adequate justification for the late submission of the evidence as a factor that outweighed considerations speaking in favour of taking that evidence into account. The requirement of adequate justification is linked to neither Rule 50(1) of Regulation No 2868/95 nor Rule 22(2) of that regulation. According to the applicant, that approach is consistent with the case-law, in particular with paragraph 44 of the second annulment judgment.

27 Lastly, the applicant submits that the reasoning provided by the Board of Appeal in paragraph 29 of the contested decision is rather sparse. It states in addition that there is a discrepancy in the explanation for the alleged errors between the Board of Appeal’s communication of 15 February 2022 and the reasons given in the contested decision. That communication suggested that the alleged error lay in the ‘strict approach to the submission of new evidence’.

28 EUIPO submits that the Board of Appeal did not infringe Article 103 of Regulation 2017/1001. It submits that the obvious errors identified in the contested decision affected the substance of the examination carried out by the Board of Appeal in the 2021 decision and that they were of such a nature that they did not allow the operative part of that decision to be maintained without a new analysis. More specifically, according to EUIPO, the application by analogy of the rules in question played a decisive role in the Board of Appeal’s finding, set out in paragraph 61 of the 2021 decision, that it was necessary to take a strict approach to the submission of new evidence in order to bring a sufficient degree of legal certainty and predictability to proceedings. That conclusion forms the basis of the Board of Appeal’s other findings. In particular, that ‘strict approach to the submission of new evidence’ led the Board of Appeal to consider that it was obliged to exercise its discretion negatively.

29 As regards the requirement of adequate justification for the late submission of evidence, EUIPO argues that the intervener provided such a justification since it had referred to the need to address the Cancellation Division’s findings, but that the Board of Appeal had incorrectly dismissed it, in paragraph 54 of the 2021 decision, by relying on the case-law applying Rule 22(2) of Regulation No 2868/95. As regards paragraph 43 of the judgment on appeal, EUIPO argues that the part of the sentence that states that ‘it is for the party presenting the evidence for the first time before the Board of Appeal to justify why that evidence is being submitted at that stage of the proceedings and demonstrate that submission during the proceedings before the Cancellation Division was impossible’ cannot be interpreted, in the light of previous case-law, as requiring the party to demonstrate that it was unable to provide the evidence concerned at an earlier stage of the procedure. Such an approach would not only deprive Article 95(2) of Regulation 2017/1001 of its practical effect, but would also be impossible to reconcile with the considerations of the Court of Justice in the judgment on appeal.

30 Lastly, EUIPO observes, as did the Board of Appeal, that the present case has a particularly long history which is due to procedural errors. It is therefore in the interest of the parties and of the proceedings to remedy the error committed in the 2021 decision rather than await the judgment of the General Court, which would further delay the proceedings.

31 The intervener submits that the error in question can be readily detected and is highly obvious. It argues that in the 2021 decision the Board of Appeal conducted its entire analysis on the premiss that Rule 50(1) of Regulation No 2868/95 was applicable in the present case. As a result of that error, the Board of Appeal felt obliged to exercise its discretion so as to find that the evidence was inadmissible, despite considering that the evidence was prima facie relevant. The Board of Appeal thereby erred in law since it limited the scenarios in which it can exercise its power of discretion in order to allow the admissibility of belated evidence to situations where new factors exist.

32 Article 103(1) of Regulation 2017/1001 states that where EUIPO has taken a decision which contains an obvious error attributable to that institution, it is to ensure that the decision is revoked.

33 In accordance with Article 70(1) of Delegated Regulation 2018/625, where EUIPO finds that a decision or entry in the Register is subject to revocation pursuant to Article 103 of Regulation 2017/1001, it is to inform the affected party about the intended revocation.

34 It is apparent from the case-law that an error may only be classified as obvious where it can readily be detected, in the light of the criteria to which the legislature intended the administration’s exercise of its discretion to be subject, and where the evidence adduced is sufficient to make that administration’s assessment implausible and that assessment cannot be accepted as justified and consistent (see judgment of 22 September 2021, Marina Yachting Brand Management v EUIPO – Industries Sportswear (MARINA YACHTING), T‑169/20, EU:T:2021:609, paragraph 112 and the case-law cited).

35 As regards the application of Article 103 of Regulation 2017/1001, it has been found that the ‘obvious’ or flagrant nature of the error justifying the adoption of a decision revoking an earlier decision referred to errors which were highly obvious and did not allow the operative part of that earlier decision to be maintained without a new analysis, which would be carried out subsequently by the department which took that decision (see, to that effect, judgment of 22 September 2021, MARINA YACHTING, T‑169/20, EU:T:2021:609, paragraph 111 and the case-law cited).

36 In the present case, the Board of Appeal put forward two grounds justifying the revocation of the 2021 decision. First, it found in paragraphs 26 and 27 of the contested decision that an approach which allowed reliance on Rule 50(1) of Regulation No 2868/95 and a finding that that rule applied, by analogy, in the context of invalidity proceedings was clearly erroneous, since, as was apparent from paragraphs 48 and 49 of the judgment on appeal, that rule was not applicable in invalidity proceedings. In that regard, the Board of Appeal added, in paragraph 29 of the contested decision, that that constituted an obvious error within the meaning of Article 103(1) of Regulation 2017/1001, since the Board of Appeal appeared to have disregarded the judgment of the Court of Justice in the same case, thereby infringing the principle of res judicata. Second, the Board of Appeal held in paragraph 28 of the contested decision that it was erroneous to refer, in paragraphs 57 and 58 of the 2021 decision, to the judgment of 22 September 2011, Mangiami (T‑250/09, not published, EU:T:2011:516), concerning the application of Rule 22(2) of Regulation No 2868/95, which applied to proof of use, and to consider that that case-law was fully transposable to the invalidity context at issue.

37 It is necessary to assess, in the light of the case-law cited in paragraph 35 above, whether the factors referred to by the Board of Appeal may be classified as obvious errors within the meaning of Article 103(1) of Regulation 2017/1001.

38 As regards, in the first place, the reference made in paragraph 40 of the 2021 decision to Rule 50(1) of Regulation No 2868/95, it is common ground that that provision is not applicable in the context of invalidity proceedings based on absolute grounds for invalidity, as found by the General Court and as confirmed by the Court of Justice (judgment on appeal, paragraph 49, and the first annulment judgment, paragraph 60).

39 However, neither the contested decision, nor ultimately the 2021 decision, shows that the reference in paragraph 40 of the latter decision to Rule 50(1) of Regulation No 2868/95 may have had an influence on the findings of the Board of Appeal as regards the possibility of accepting the evidence newly submitted by the intervener to the extent that that error did not allow the operative part of the 2021 decision to be maintained without a new analysis.

40 In paragraph 62 of the 2021 decision, the Board of Appeal reached the conclusion that, in the absence of any acceptable justification for the late submission of the evidence, it was obliged to exercise its discretion negatively and did not have to accept the additional evidence. That obligation, as is apparent from the criteria referred to by the Board of Appeal in paragraph 43 of the 2021 decision, follows inter alia from paragraph 44 of the second annulment judgment.

41 As regards the reasoning which led it to the abovementioned finding, the Board of Appeal referred first of all, in paragraph 41 of its 2021 decision, to the second annulment judgment, from which it was apparent, inter alia, that evidence submitted late was not automatically admissible, and that it was for the party presenting that evidence to justify why it had been submitted at that stage of the proceedings and demonstrate that submission during the proceedings before the Cancellation Division was impossible.

42 Next, after setting out in paragraph 43 of the 2021 decision the criteria to be taken into account, the Board of Appeal found in paragraph 47 of the decision that the evidence submitted for the first time at the appeal stage was prima facie pertinent. However, according to the Board of Appeal, there was nothing to demonstrate that that evidence was new in that it was not available or that it was not possible to submit it during the cancellation proceedings. The Board of Appeal therefore found that the additional evidence could have been brought forward already before the Cancellation Division.

43 Lastly, the Board of Appeal found in paragraph 54 of the 2021 decision that the justification provided for the late submission of the evidence at issue by the intervener, namely the finding by the Cancellation Division that the evidence presented initially was insufficient, could not be regarded as a new factor justifying the submission of additional evidence at the stage of the appeal.

44 Accordingly, it has not been shown that the incorrect reference to Rule 50(1) of Regulation No 2868/95 had an impact on the reasoning followed by the Board of Appeal or on its finding.

45 As to the consideration appearing in paragraph 61 of the 2021 decision, related to the need to take a strict approach to the submission of new evidence, it is not evident from the reasoning of the Board of Appeal that that consideration was based on Rule 50(1) of Regulation No 2868/95.

46 As regards, in the second place, whether it is possible to transpose the principles set out in paragraph 27 of the judgment of 22 September 2011, Mangiami (T‑250/09, not published, EU:T:2011:516) to the present case, the Board of Appeal took the view, in paragraph 57 of the 2021 decision, that allowing supplementary evidence submitted for the first time at the appeal stage without sound justification would deprive Rule 37(b)(iv) and Rule 39(3) of Regulation No 2868/95 of their effect. In order to reach that conclusion, the Board of Appeal found, in paragraph 58 of the 2021 decision, that the principles laid down in that judgment, in the context of proof of use, were fully transposable to the invalidity context.

47 In addition, the Board of Appeal also made reference to the judgment of 22 September 2011, Mangiami (T‑250/09, not published, EU:T:2011:516) in paragraphs 43 and 54 of the 2021 decision. First, in paragraph 43 of the decision, citing paragraph 24 of that judgment, the Board of Appeal found that, inter alia, it should examine whether the cancellation applicant referred to new factors in order to contest the registrability of the earlier mark at issue or whether the additional evidence was not available at the time it was required to be submitted, those circumstances being able in particular to justify the late submission of additional evidence. Second, in paragraph 54 of the 2021 decision, referring to paragraphs 26 and 27 of the abovementioned judgment, the Board of Appeal held that the finding by the Cancellation Division, that the evidence was insufficient, could not be regarded as a factor that justified the submission of additional evidence provided for the first time before the Board of Appeal. Consequently, it found that the decision of the Cancellation Division was not a new factor.

48 In that regard, it should be observed that it was held in paragraphs 26 and 27 of the judgment of 22 September 2011, Mangiami (T‑250/09, not published, EU:T:2011:516), that reasoning by the Cancellation Division, which had led to a finding of insufficient proof of the use of the earlier mark, could not in itself be regarded as a new factor justifying the submission of additional evidence provided for the first time before the Board of Appeal. If the Board were to accept that such reasoning by the Cancellation Division constituted a new factor, that would considerably limit the scope of the time limit laid down in Rule 22(2) of Regulation No 2868/95. The Court held that that would mean that whenever the Board of Appeal held that the Cancellation Division had been wrong to find that the evidence provided was insufficient, it would be able to accept additional evidence for proof of use submitted before it for the first time.

49 However, assuming that it is not possible to transpose considerations related to justifying the submission of additional evidence in the context of the application of Rule 22(2) of Regulation No 2868/95 to a case governed by Rule 37(b)(iv) and Rule 39(3) thereof, the possible error made by the Board of Appeal cannot be categorised as obvious, within the meaning of the case-law cited in paragraph 35 above.

50 In that regard, it must first be pointed out that it is not the case that the Board of Appeal applied Rule 22(2) of Regulation No 2868/95 in a procedure for invalidity; rather, it referred, by analogy, to case-law on the application of that provision.

51 Second, it should be observed that it is apparent from Rule 22(2) of Regulation No 2868/95 that where the opposing party has to furnish proof of use of the mark or show that there are proper reasons for non-use, EUIPO is to invite it to provide the proof required within such period as it is to specify. If the opposing party does not provide such proof before the time limit expires, EUIPO is to reject the opposition. In addition, it is apparent from Rule 37(b)(iv) of Regulation No 2868/95 that an application for revocation or for a declaration of invalidity of an EU trade mark is to contain an indication of the facts, evidence and arguments presented in support thereof. Rule 39(3) of that regulation states in turn that where such an application does not comply with Rule 37, EUIPO is to invite the applicant to remedy the deficiencies found within such period as it may specify and, if those deficiencies are not remedied before expiry of the time limit, EUIPO is to reject the application as inadmissible.

52 It must be stated that while those are indeed two different procedural contexts, they are nevertheless comparable in that in both cases EUIPO establishes a time limit for the submission of evidence and is to reject the applications where that evidence is not submitted. Accordingly, the fact that they are different procedures cannot, by itself, constitute sufficient reason to consider that it is manifestly not possible to transpose the case-law relating to proof of use to invalidity proceedings. In that regard, it should be observed that certain other judgments referred to by the Board of Appeal, namely the judgments of 18 July 2013, New Yorker SHK Jeans v OHIM (C‑621/11 P, EU:C:2013:484), and of 29 September 2011, New Yorker SHK Jeans v OHIM – Vallis K.-Vallis A. (FISHBONE) (T‑415/09, not published, EU:T:2011:550), also concern the issue of genuine use.

53 In any event, it should be pointed out that the reference to the judgment of 22 September 2011, Mangiami (T‑250/09, not published, EU:T:2011:516), which had an effect on the finding of the Board of Appeal as regards justifying the late submission of evidence, is made in paragraph 54 of the 2021 decision and not paragraphs 57 and 58 thereof.

54 It follows that the mere application by analogy of the case-law relating to the interpretation of Rule 22(2) of Regulation No 2868/95 in the present case cannot constitute an obvious error within the meaning of Article 103(1) of Regulation 2017/1001.

55 As regards the argument put forward by EUIPO that the intervener had provided a justification for the late submission of evidence, namely the need to address the Cancellation Division’s findings, but that the Board of Appeal, in paragraph 54 of the 2021 decision, had incorrectly rejected it, it is sufficient to note that that line of argument is not part of the grounds on which the contested decision is based. Nevertheless, the statement of reasons for a decision must appear in the actual body of that decision and may not be made by means of subsequent explanations provided by EUIPO, save in exceptional circumstances which, in the absence of any urgency, are not present. It follows that the decision must, in principle, be self-sufficient and that the reasons on which it is based cannot be stated in written or oral explanations given subsequently when the decision in question is already the subject of proceedings brought before the EU Courts (see judgment of 12 December 2017, Sony Computer Entertainment Europe v EUIPO – Vieta Audio (Vita), T‑35/16, not published, EU:T:2017:886, paragraph 57 and the case-law cited).

56 The same applies to the other arguments put forward by EUIPO, in particular those based on the fact that the present case has a particularly long history and that it is in the interest of the parties and of the proceedings to remedy the error made in the 2021 decision. In that regard, it is sufficient to observe that none of those alleged circumstances can constitute an obvious error within the meaning of Article 103(1) of Regulation 2017/1001.

57 In the light of the foregoing, the present plea must be upheld and the contested decision annulled, without there being any need to examine the applicant’s other arguments and the second and third pleas.

58 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

59 EUIPO and the intervener have been unsuccessful in the present case. However, the applicant has claimed only that EUIPO should be ordered to pay the costs. In those circumstances, and in view of the fact that the decision to proceed to revoke the 2021 decision is attributable to the Board of Appeal, EUIPO is to bear its own costs and pay those incurred by the applicant, while the intervener is to bear its own costs.

1. Annuls the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 27 June 2022 (Case R 894/2020‑1);

2. Orders EUIPO to bear its own costs and to pay those incurred by Société des produits Nestlé SA;

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Societe des produits Nestle v EUIPO - European Food (FITNESS) (EU trade mark - - Judgment) [2023] EUECJ T-519/22 (07 June 2023) URL: http://www.bailii.org/eu/cases/EUECJ/2023/T51922.html Cite as: ECLI:EU:T:2023:314, [2023] EUECJ T-519/22, EU:T:2023:314

Court of Justice of the European Communities (including Court of First Instance Decisions)