T-571/24

ORDER OF THE GENERAL COURT (Second Chamber) 19 January 2026 (*) ( EU trade mark – Invalidity proceedings – International registration designating the European Union – Figurative mark PIC – Earlier EU word mark PIC – Relative ground for invalidity – Genuine use of the earlier mark – Article 64(2) of Regulation (EU) 2017/1001 – Admissibility of new evidence – Relevant periods – Article 95(2) of Regulation 2017/1001 – Article 27(4) of Delegated Regulation (EU) 2018/625 – Evidence submitted for the first time before the Board of Appeal – Discretion of the Board of Appeal – Action manifestly lacking any foundation in law ) In Case T‑571/24, Pic Corp., established in Linden, New Jersey (United States), represented by J.M. Mora Cortés, lawyer, applicant, v European Union Intellectual Property Office (EUIPO), represented by D. Stoyanova-Valchanova, acting as Agent, defendant, the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being Updike eCom GmbH, established in Remshalden (Germany), represented by P. Schneider and G. Hasselblatt, lawyers, THE GENERAL COURT (Second Chamber), composed, at the time of the deliberations, of A. Marcoulli, President, W. Valasidis and L. Spangsberg Grønfeldt (Rapporteur), Judges, Registrar: V. Di Bucci, makes the following Order 1        By its action under Article 263 TFEU, the applicant, Pic Corp., seeks the annulment and alteration of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 23 August 2024 (Case R 249/2024-4) (‘the contested decision’).  Background to the dispute 2        On 29 August 2022, the intervener, Updike eCom GmbH, filed with EUIPO an application for a declaration of invalidity of the EU trade mark which had been registered following an application filed on 14 December 2017 for the following figurative sign: 3        In the present case, the contested trade mark corresponded to a US trade mark, for which the applicant had designated the European Union in international registration No 1 413 621, with priority claimed from 19 June 2017. 4        The goods covered by the contested mark in respect of which a declaration of invalidity was sought were in Classes 5 and 21 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, and corresponded, for each of those classes, to the following description: –        Class 5: ‘Insect repellents; insecticides’; –        Class 21: ‘Insect traps, rodent traps; ultrasonic electronic rodent repellent devices’. 5        The application for a declaration of invalidity was based on the earlier EU word mark PIC, which was registered on 16 March 2004, and duly renewed until 18 July 2032 and covers goods in Classes 5 and 21 corresponding, for each of those classes, to the following description: –        Class 5: ‘Preparations for destroying vermin, including parasites and moths, with a chemical, biochemical and genetically engineered base; insecticides with or without protective substances and protection mechanisms for useful insects, fly catching paper, fungicides; pesticides; disinfectants; including all the aforesaid goods in spray form; insect traps in the form of tree-sap bands and sticky boards and strips, including in various colours; moth paper’; –        Class 21: ‘Mechanical vermin traps, fly catching paper; insect-catchers, insect traps with sticky surfaces; bait boxes, flyswatters, mousetraps’. 6        The ground relied on in support of the application for a declaration of invalidity was that set out in Article 60(1)(a) of 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), read in conjunction with Article 8(1)(b) of that regulation. 7        On 16 January 2023, in accordance with Article 64(2) of Regulation 2017/1001, the applicant requested the intervener to prove genuine use of the earlier mark for all the goods claimed, in respect of the two relevant periods referred to in that provision, that is to say, first, the period of five years immediately preceding the opening of the invalidity proceedings on 29 August 2022 (‘the first relevant period’) and, secondly, the period of five years immediately preceding the priority date of 19 June 2017 (‘the second relevant period’). 8        On 22 May 2023, the intervener adduced evidence of use identical to that adduced in parallel invalidity proceedings No 56 017 C against international registration No 1 638 456 designating the European Union, which was also the subject of an application for a declaration of invalidity dated 29 August 2022 and for which the applicant had also requested proof of use (‘the parallel invalidity proceedings’). In those parallel invalidity proceedings, the priority date claimed by the intervener was 17 June 2021. 9        On 19 December 2023, the Cancellation Division rejected the application for a declaration of invalidity in its entirety in the present case on the ground that, in essence, the time indications in the evidence submitted by the intervener fell within the first relevant period and that none of the evidence submitted referred to the second relevant period. 10      On 31 January 2024, the intervener filed a notice of appeal with EUIPO against the decision of the Cancellation Division. It then submitted evidence relating to the second relevant period to the Board of Appeal. 11      By the contested decision, the Board of Appeal upheld the appeal. It annulled the decision of the Cancellation Division and, pursuant to Article 71(1) and (2) of Regulation 2017/1001, decided to refer the case back to the Cancellation Division so that it could examine the evidence submitted by the intervener in order to establish genuine use of the earlier mark during the two relevant periods.  Forms of order sought 12      The applicant claims, in essence, that the Court should: –        annul the contested decision; –        refuse the admission of the new evidence; –        uphold the decision of the Cancellation Division; –        order EUIPO and the intervener to pay the costs. 13      EUIPO contends that the Court should: –        dismiss the action in its entirety; –        order the applicant to pay the costs in the event that an oral hearing is convened. 14      The intervener contends that the Court should: –        dismiss the action in its entirety; –        order the applicant to pay the costs.  Law 15      Under Article 126 of the Rules of Procedure of the General Court, where it is clear that the Court has no jurisdiction to hear and determine an action or where the action is manifestly inadmissible or manifestly lacking any foundation in law, it may decide to give a decision by reasoned order without taking further steps in the proceedings. 16      In the present case, the Court, considering that it has sufficient information from the documents in the file, has decided, pursuant to that provision, to give a decision without taking further steps in the proceedings, even though one of the parties has requested a hearing. 17      In support of its action, the applicant puts forward four pleas in law, alleging: –        first, infringement of Article 64(2) and (3) of Regulation 2017/1001 and Article 19(2) 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); –        secondly, infringement of Article 94 of Regulation 2017/1001; –        thirdly, infringement of Article 95 of Regulation 2017/1001 and Article 27(2) of Delegated Regulation 2018/625, in so far as the intervener had at no time, during the proceedings before EUIPO, argued that its ‘oversight’ in submitting evidence relating to the second relevant period was justified and in so far as the applicant had not been in a position to submit its observations on that alleged ‘oversight’; –        fourthly, infringement of Article 95(2) of Regulation 2017/1001. 18      In the present case, with regard, first of all, to the application for annulment of the contested decision made in the first head of claim, it is necessary to examine, first, the second plea, alleging a failure to state reasons for the contested decision, before examining the first and fourth pleas together, in so far as they relate to the exercise of the discretion conferred on the Board of Appeal to admit evidence submitted for the first time before it, and to finish by examining the third plea, alleging a failure to comply with the limits of the examination of the pleas put forward by the parties.  The claim for annulment of the contested decision  The second plea, alleging a failure to state reasons 19      In essence, the applicant argues that the contested decision does not contain an adequate statement of reasons in that it does not set out the reasons why the Board of Appeal accepted the evidence relating to the second relevant period which was produced before it for the first time. In particular, the Board of Appeal should have given a valid reason to justify its decision to accept such evidence. 20      EUIPO and the intervener dispute the applicant’s arguments. 21      Under Article 94(1) of Regulation 2017/1001, ‘decisions of [EUIPO] shall state the reasons on which they are based’. 22      In that regard, it should be noted that the applicant’s argument is based on a misreading of the contested decision. In paragraphs 27 to 31 of the contested decision, the Board of Appeal stated that the evidence produced for the first time before it satisfied the requirements of Article 27(4) of Delegated Regulation 2018/625. 23      In particular, the Board of Appeal stated, first, that that evidence was likely to be relevant for the outcome of the case, because it would help to determine whether genuine use of the earlier mark had been proven. Secondly, the Board of Appeal also considered that that evidence supplemented relevant facts and evidence which had already been submitted by the intervener before the Cancellation Division. Thirdly, the Board of Appeal stated that it was apparent from the particular circumstances of the parallel invalidity proceedings, referred to in paragraphs 19 to 22 of the contested decision, that the oversight as regards the relevant periods was not entirely incomprehensible. 24      Moreover, in the present case, it is also necessary to take into account the considerations set out in parts of the contested decision other than that relating to the examination of the evidence produced by the intervener for the first time before the Board of Appeal. Those matters make it possible to explain and better understand the context of the reasons referred to above. 25      In that regard, in the fourth indent of paragraph 12 of the contested decision, it is apparent from the information provided by the intervener when it submitted the evidence in question to the Board of Appeal that the intervener stated that, since it was not the holder of the earlier mark at that time, it had had to contact the former holder of that mark or its customers in order to obtain the relevant information. 26      In the light of the foregoing, it clearly cannot be argued that the contested decision does not refer to the reasons why the Board of Appeal accepted the admissibility of the evidence relating to the second relevant period, which was produced for the first time before it. 27      The applicant’s second plea must therefore be rejected as manifestly unfounded.  The first and fourth pleas, alleging that the Board of Appeal wrongly accepted evidence of genuine use of the earlier mark submitted for the first time before it 28      In essence, the applicant argues, first of all, that the Board of Appeal did not correctly apply Article 64(2) and (3) of Regulation 2017/1001 and Article 19(2) of Delegated Regulation 2018/625, which specify that, if the applicant so requests, the intervener is to furnish proof of genuine use of the earlier mark in respect of two relevant periods. The applicant also submits that the Board of Appeal erred in law in its application of Article 95(2) of Regulation 2017/1001 and Article 27(4) of Delegated Regulation 2018/625, in so far as it accepted the evidence relating to the second relevant period which was produced by the intervener for the first time before it. 29      According to the applicant, in the absence of any attempt by the intervener to adduce evidence of genuine use relating to the second relevant period before the Cancellation Division, there was nothing that that new evidence could ‘supplement’. It argues that the principles derived from the judgment of 20 March 2019, Prim v EUIPO – Primed Halberstadt Medizintechnik (PRIMED) (T‑138/17, not published, EU:T:2019:174), referred to in the contested decision in that regard to justify the admission of such evidence, concerned significantly different facts and therefore cannot be applied to the present case. 30      The applicant also argues that the Board of Appeal did not correctly exercise its discretion, in particular with regard to the requirements laid down in Article 27(4) of Delegated Regulation 2018/625. Accordingly, the Board of Appeal did not specifically analyse the relevance and supplementary nature of that evidence, but merely made a general finding. It submits that the supplementary nature of the evidence produced late is, moreover, not a sufficient condition for it to be taken into consideration. Similarly, according to the applicant, the Board of Appeal failed to identify valid reasons why the new evidence had not been produced before the Cancellation Division in due time, even though this is a necessary condition for the admission of late evidence. 31      EUIPO and the intervener dispute the applicant’s arguments. 32      As a preliminary point, it is apparent from Article 64(2) and (3) of Regulation 2017/1001 and Article 19(2) of Delegated Regulation 2018/625 that, at the applicant’s request, it was for the intervener to furnish proof of genuine use of the earlier mark in relation to two relevant periods. 33      In the present case, it is not disputed that the intervener produced relevant evidence relating only to the first relevant period before the Cancellation Division and that it was only before the Board of Appeal that it produced evidence relating to the second relevant period. 34      Accordingly, and as is apparent from paragraph 18 of the contested decision, the Board of Appeal was right to consider that the key question which arose in the present case was whether, in the light of the applicable provisions, it was entitled to accept the admissibility of the evidence relating to the second relevant period, which was produced for the first time before it. 35      The arguments put forward by the applicant in the first and fourth pleas seek, in essence, to call into question the affirmative answer given to that question by the Board of Appeal in the contested decision. 36      In that regard, Article 95(2) of Regulation 2017/1001 provides that EUIPO may disregard facts or evidence which are not submitted in due time by the parties concerned. 37      Accordingly, it follows from the wording of that provision that, as a general rule and unless otherwise specified, the submission of evidence by the parties remains possible after the expiry of the time limits to which such submission is subject and that EUIPO is in no way prohibited from taking account of evidence which has not been submitted in due time (see, to that effect, judgments of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraph 42; of 19 April 2018, EUIPO v Group, C‑478/16 P, not published, EU:C:2018:268, paragraph 34; and of 2 June 2021, Franz Schröder v EUIPO – RDS Design (MONTANA), T‑854/19, EU:T:2021:309, paragraph 24). 38      It is also apparent from the case-law that the fact that a party has produced evidence out of time does not confer on it an unconditional right to have that evidence taken into consideration by EUIPO. In stating that EUIPO ‘may’ decide to disregard such evidence, that provision grants EUIPO a wide discretion to decide, while giving reasons for its decision in that regard, whether or not to take such evidence into account (see, to that effect, judgments of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraph 43; of 18 July 2013, New Yorker SHK Jeans v OHIM, C‑621/11 P, EU:C:2013:484, paragraph 23; and of 26 September 2013, Centrotherm Systemtechnik v OHIM and centrotherm Clean Solutions, C‑610/11 P, EU:C:2013:593, paragraph 78). 39      Any consideration of evidence relating to the second relevant period, which was submitted for the first time before the Board of Appeal, therefore fell, as is apparent from the examination carried out in paragraphs 27 to 31 of the contested decision, within the discretion of the Board of Appeal provided for in Article 95(2) of Regulation 2017/1001. 40      In that context, as the Board of Appeal rightly stated in paragraph 28 of the contested decision, it should be recalled that the exercise of the discretion provided for in Article 95(2) of Regulation 2017/1001 is circumscribed by Article 27(4) of Delegated Regulation 2018/625. That provision lays down the requirements which must be fulfilled in order for the Board of Appeal to be able to accept evidence submitted for the first time before it. 41      Accordingly, Article 27(4) of Delegated Regulation 2018/625 states that ‘in accordance with Article 95(2) of Regulation (EU) 2017/1001, the Board of Appeal may accept facts or evidence submitted for the first time before it only where those facts or evidence meet the following requirements: (a) they are, on the face of it, likely to be relevant for the outcome of the case; and (b) they have not been produced in due time for valid reasons, in particular where they are merely supplementing relevant facts and evidence which had already been submitted in due time, or are filed to contest findings made or examined by the first instance of its own motion in the decision subject to appeal’. 42      As regards the first requirement laid down by that provision, it must be noted – which, moreover, is not disputed by the applicant – that the Board of Appeal was entitled to consider that the evidence submitted by the intervener for the first time before it, the content of which is described in the contested decision, was indeed, on the face of it, likely to be relevant for the outcome of the case. Such evidence sought to demonstrate genuine use of the earlier mark and, as the Board of Appeal stated in paragraph 29 of the contested decision, its examination made it possible to determine whether that use had been proven. 43      As regards the second requirement referred to by Article 27(4) of Delegated Regulation 2018/625, it should be recalled that it has already been held, as the Board of Appeal rightly points out in paragraph 29 of the contested decision, that the submission of evidence of genuine use of the earlier mark which supplements relevant evidence which has already been submitted before the Cancellation Division within the period set is admissible (see, to that effect, judgment of 20 March 2019, PRIMED, T‑138/17, not published, EU:T:2019:174, paragraph 52). 44      It is apparent from settled case-law that supplementary evidence is characterised by a link with other evidence previously submitted in due time which it supplements. Accordingly, the fact that the evidence of genuine use of the earlier mark would relate to a relevant period different to that in respect of which the initial evidence had been submitted does not mean that it would concern a different requirement and therefore does not prevent it from being regarded as supplementary to that evidence (judgments of 20 March 2019, PRIMED, T‑138/17, not published, EU:T:2019:174, paragraphs 58 and 59; of 19 January 2022, Masterbuilders, Heiermann, Schmidtmann v EUIPO – Cirillo (POMODORO), T‑76/21, not published, EU:T:2022:16, paragraph 46, and of 23 November 2022, Zeta Farmaceutici v EUIPO – Specchiasol (EUPHYTOS), T‑515/21, not published, EU:T:2022:722, paragraph 110; see also, to that effect, judgment of 16 October 2024, Fractal Analytics v EUIPO – Fractalia Remote Systems (FRACTALIA), T‑194/23, not published, EU:T:2024:696, paragraph 53 and the case-law cited). 45      It should also be pointed out that the ground based on the existence of a ‘link of complementarity’ between the evidence submitted in due time and that produced for the first time before the Board of Appeal in itself constitutes an autonomous ‘valid ground’ for allowing the examination of the latter evidence in the appeal proceedings (see, to that effect, judgments of 20 March 2019, PRIMED, T‑138/17, not published, EU:T:2019:174, paragraph 56, and of 16 October 2024, FRACTALIA, T‑194/23, not published, EU:T:2024:696, paragraph 53). 46      In the present case, it must be noted that the evidence relating to the second relevant period supplements, in so far as it supports, explains and contextualises, the evidence relating to the first relevant period previously submitted. Moreover, the applicant does not convincingly explain why the Board of Appeal’s finding concerning the ‘link of complementarity’ between those sets of evidence should be regarded as incorrect. 47      Therefore, the second requirement of Article 27(4)(b) of Delegated Regulation 2018/625 is fulfilled in the present case. 48      Consequently, contrary to what the applicant argues, it is clear that the Board of Appeal duly considered the two cumulative requirements for application set out in Article 27(4) of Delegated Regulation 2018/625 and that it did not make any error of law in agreeing to take into account the evidence submitted for the first time before it by the intervener in view of the link of complementarity between that evidence and the evidence submitted in due time. 49      In the light of the foregoing, the first and fourth pleas must be rejected as manifestly unfounded.  The third plea, alleging a failure to comply with the limits of the examination of the pleas put forward by the parties 50      In essence, the applicant complains that the Board of Appeal referred, in paragraph 31 of the contested decision, to an ‘oversight’ on the part of the intervener. It is claimed that the intervener never indicated to EUIPO that its failure to submit evidence relating to the second relevant period was due to an oversight on its part. According to the applicant, the Board of Appeal adopted at that point a speculative position, on which the applicant notes that it was unable to comment, even though that was an important consideration in the Board of Appeal’s reasoning in the contested decision. 51      EUIPO and the intervener dispute that line of argument. 52      As already recalled in paragraphs 36 to 39 above, EUIPO ‘may’ disregard facts or evidence which are not submitted in due time by the parties concerned. EUIPO is therefore in no way prohibited from taking into account evidence which was not produced in due time, and Article 95 of Regulation 2017/1001 and Article 27(2) of Delegated Regulation 2018/625 confer on EUIPO a broad discretion in that regard. 53      It is therefore sufficient to note that the fact that the Board of Appeal described as an ‘oversight’, in paragraph 31 of the contested decision, the fact that evidence relating to the second relevant period was not submitted in due time does not call into question the Board of Appeal’s finding that there were valid reasons for it to consider that the requirement laid down in Article 27(4)(b) of Delegated Regulation 2018/625 was fulfilled. That further consideration therefore has no bearing on the legality of the admission of the evidence produced for the first time before the Board of Appeal. 54      In the light of the foregoing, the third plea must clearly be rejected. 55      Consequently, since none of the pleas relied on by the applicant in support of its application for annulment of the contested decision can be upheld, the action must be dismissed in its entirety as manifestly lacking any foundation in law.  Costs 56      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 57      Since the applicant has been unsuccessful, it must be ordered to pay the intervener’s costs, in accordance with the form of order sought by the latter. 58      By contrast, since EUIPO has applied for the applicant to be ordered to pay the costs only in the event that a hearing is convened, EUIPO must, in the absence of a hearing, be ordered to bear its own costs. On those grounds, THE GENERAL COURT (Second Chamber) hereby: 1.      Dismisses the action as manifestly lacking any foundation in law; 2.      Orders Pic Corp. to bear its own costs and to pay those incurred by Updike eCom GmbH; 3.      Orders the European Union Intellectual Property Office (EUIPO) to bear its own costs. Luxembourg, 19 January 2026. V. Di Bucci   A. Marcoulli Registrar   President *      Language of the case: English.