The matter at hand

This matter concerns the interpretation of Article 80(1) of Trade Mark Regulation 207/2009Council Regulation [EC] No 207/2009 of 26 February 2009 on the Community trade mark, which provides that where EUIPO has made an entry in the register or taken a decision which contains an obvious procedural error attributable to EUIPO, it shall ensure that the entry is cancelled or the decision is revoked. In a case regarding the validity of the trade mark REPOWER, the Fifth Board of Appeal had cancelled its earlier decision in that case on the ground that that decision did not comply with the obligation to (sufficiently) state reasons. In appeal, the General Court disagreed that the Fifth Board of Appeal could base the cancellation on Article 80(1) of Trade Mark Regulation 207/2009Council Regulation [EC] No 207/2009 of 26 February 2009 on the Community trade mark, holding that a failure to state reasons does not constitute an obvious procedural error. However, the General Court held that the cancellation by the Fifth Board of Appeal could nevertheless be upheld, because it could be based on the general principle of law allowing the withdrawal of unlawful administrative acts.

The judgment of the ECJ

The ECJ rules that any breach of the obligation to state reasons, such as a lack or inadequate statement of reasons, constitutes a procedural error within the meaning of Article 80(1) of Trade Mark Regulation 207/2009Council Regulation [EC] No 207/2009 of 26 February 2009 on the Community trade mark. The ECJ further holds that Article 80(1) is a lex specialis and does not allow EUIPO to take account, on the basis of Article 83(1), of principles regarding the same subject matter which are generally recognised in the Member States.

Although the General Court thus made an error by applying a principle generally recognised in the Member States, application of the correct principle leads to the same result, namely that the cancellation by the Fifth Board of Appeal was justified. For this reason, the ECJ dismisses the appeal.