Rule 50 of the Implementing Regulation cannot give discretion to the Boards of Appeal to additional evidence. The article contains a rule that applies horizontally
"27. As the Advocate General observed, in paragraphs 55 and 57 of his Opinion, Article 76(2) of Regulation No 207/2009 should be interpreted in the same way in relation to proof of the existence, validity and scope of protection of a trade mark since that provision contains a rule which applies horizontally within the scheme of that regulation, inasmuch as it applies irrespective of the nature of the proceedings concerned. It follows that Rule 50 of the Implementing Regulation cannot be interpreted as meaning that it extends the discretion of the Boards of Appeal to additional evidence."
Error in law by the General Court with regards to the discretion regarding additional evidence.
"28. It must be stated that the General Court erred in law in paragraphs 45, 46 and 48 of the judgment under appeal by holding that the Board of Appeal had failed to exercise the discretion conferred on it to decide whether or not it was appropriate to take additional evidence into consideration"
Judgment of the General Court regarding a breach of art. 76(2) of the Regulation 207/2009. Judgment is justified on other grounds.
"29. However, it must be recalled that it follows from settled case-law of the Court of Justice that where the grounds of a judgment of the General Court disclose an infringement of EU law but the operative part of the judgment is shown to be well founded for other legal reasons, the appeal must be dismissed (see, in particular, judgments of 15 December 1994 in Finsider v Commission, C-320/92 P, EU:C:1994:414, paragraph 37; 16 December 1999 in CES v E, C-150/98 P, EU:C:1999:616, paragraph 17, and 13 July 2000 in Salzgitter v Commission, C-210/98 P, EU:C:2000:397, paragraph 58).
30. That is the position in the present case. The General Court did not uphold the only plea under consideration, but also relied on the fact that the Board of Appeal had rejected the evidence at issue without examining whether it could be regarded as being ‘supplementary’. By failing to undertake that examination, the Board of Appeal did in fact infringe Article 76(2) of Regulation No 207/2009 as the General Court held."
IPPT20160721, CJEU, EUIPO v Grau Ferrer
C-597/14 P - ECLI:EU:C:2016:579
