The matter at hand
In opposition proceedings based on Eloro's earlier EU trade mark JUMEX against the application for registration of a figurative mark containing the word element ZUMEX, the applicant requested Eloro to prove genuine use of its earlier mark. The proof was rendered by Eloro and the Opposition Division upheld the opposition in its entirety. In appeal, however, the Board of Appeal refused to accept Eloro’s proof of genuine use, considering that it was submitted too late. Consequently, the appeal was upheld and the decision of the Opposition Division annulled.
Eloro subsequently initiated an action before the General Court, in essence relying on the plea that by not accepting the belated evidence, the Board of Appeal had wrongfully assessed the proof of genuine use. Eloro argued that the discretion conferred on the Board of Appeal to reject belated evidence must be interpreted narrowly and required a (more) detailed explanation justifying the refusal. The General Court dismissed the action in its entirety, concluding that the Board of Appeal rightfully rejected the evidence. Eloro then proceeded to lodge an appeal before the ECJ.
The judgment of the ECJ
The ECJ recalls that as a general rule and unless otherwise specified, the submission of facts and evidence by the parties remains possible after the expiry of certain time-limits to which such submission is subject. The ECJ emphasizes that the Opposition Division and Board of Appeal are in no way prohibited from taking belated evidence into account. Nonetheless, as the ECJ adds, a party has no unconditional right to have belated evidence being taken into consideration. The Opposition Division and the Board of Appeal are granted a wide discretion in whether or not accepting such evidence. The ECJ considers that accepting belated evidence is particularly justified if, first, such evidence is likely to be relevant to the outcome of the opposition or appeal brought and, second, the stage of the proceedings as well as the circumstances surrounding it do not preclude the evidence being taken into account.
the ECJ points out that, once the Opposition Division or Board of Appeal decide that the belated evidence will not be taken into account, there is no case-law indicating a requirement of giving ‘enhanced reasoning’ to justify such decision. In the case at hand, the General Court therefore rightfully concluded that the Board of Appeal had not erred in rejecting the belated evidence of Eloro, in so far as it held that Eloro had been able to timely submit the evidence on multiple occasions yet failed to do so.