European Food v EUIPO - Societe des produits Nestle (FITNESS) (EU trade mark - Judgment) [2024] EUECJ T-799/21 (27 November 2024)

Judgment By its action under Article 263 TFEU, the applicant, European Food SA, seeks the annulment and alteration of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 12 October 2021 (Case R 894/2020-1) (‘the contested decision’). I. Background to the dispute On 20 November 2001, the intervener, Société des produits Nestlé SA, filed an application for registration of an EU trade mark with EUIPO in respect of 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, replaced in turn 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)). 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, and correspond, for each of those classes, to the following description: – Class 29: ‘Milk, cream, butter, cheese, yoghurts and other milk-based food preparations, substitutes for dairy products, eggs, jellies, fruit, vegetables, protein preparations for human consumption; excluding soups and ready-to-eat meals’; – Class 30: ‘Cereals and cereal preparations; ready-to-eat cereals; breakfast cereals; foodstuffs based on rice or flour’; – Class 32: ‘Still water, aerated or carbonated water, spring water, mineral water, flavoured water, fruit drinks, fruit juices, nectars, lemonades, sodas and other non-alcoholic drinks, syrups and other preparations for making syrups and other preparations for making beverages’. The trade mark application was published in Community Trade Marks Bulletin No 3/2003 of 6 January 2003. That mark was registered on 30 May 2005 under No 2470326. On 2 September 2011, the applicant, European Food SA, filed an application for a declaration of invalidity of the contested mark in respect of all the goods covered by that mark. 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). On 18 October 2013, the Cancellation Division rejected the application for a declaration of invalidity in its entirety. On 16 December 2013, the applicant filed a notice of appeal against the Cancellation Division’s decision. During the appeal proceedings, the applicant submitted further evidence in support of its claim that the term ‘fitness’ had a descriptive content in respect of the goods at issue. 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 the evidence submitted for the first time before it as having been submitted late, without taking that evidence into consideration. By application lodged at the Registry of the General Court on 19 August 2015, the applicant brought an action against the decision of the Fourth Board of Appeal. 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 General Court annulled the decision of the Fourth Board of Appeal. It held that that Board of Appeal had erred in law in finding that the evidence submitted by the applicant for the first time at the appeal stage was not to be taken into consideration because that evidence had been submitted late. EUIPO brought an appeal against the first annulment judgment. By its 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. By decision of 6 June 2018 in Case R 755/2018-2, the Second Board of Appeal annulled the Cancellation Division’s decision. In particular, that Board of Appeal considered 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 submitted by the applicant for the first time before the Fourth Board of Appeal in Case R 2542/2013-4. Taking account of that evidence, the Second Board of Appeal found that the contested mark was descriptive and devoid of any distinctive character. By application lodged at the Registry of the General Court on 11 September 2018, the intervener brought an action against the decision of the Second Board of Appeal. 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 General Court annulled the decision of the Second Board of Appeal. In particular, it held that that Board of Appeal had incorrectly 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 applicant for the first time before the Fourth Board of Appeal. The applicant 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. By the contested decision, the First Board of Appeal of EUIPO dismissed the applicant’s appeal. As regards the evidence submitted before the Fourth Board of Appeal, the First Board of Appeal found that the applicant had not provided adequate reasons for the late submission of the evidence and that, consequently, it was obliged to exercise its discretion negatively and not accept that evidence. By decision of 27 June 2022 (‘the revocation decision’), the First Board of Appeal revoked the contested decision. By application lodged at the Registry of the General Court on 29 August 2022, the intervener brought an action against the revocation decision. By judgment of 7 June 2023, Société des produits Nestlé v EUIPO - European Food (FITNESS) (T‑519/22, EU:T:2023:314 ), the General Court annulled the revocation decision, holding, in essence, that none of the errors identified by the Board of Appeal could constitute an obvious error within the meaning of Article 103(1) of Regulation 2017/1001. II. Forms of order sought The applicant claims that the Court should: – annul the contested decision; – in the alternative, alter the contested decision and uphold the appeal against the Cancellation Division’s decision; – order EUIPO to pay the costs. EUIPO contends that the Court should: – dismiss the action; – order the applicant to pay the costs incurred by EUIPO in the event that a hearing is convened. The intervener contends, in essence, that the Court should: – dismiss the action; – order the applicant to pay the costs. III. Law A. The applicable law The intervener submits that the Board of Appeal should have applied Article 72(6) and Article 95(2) of Regulation 2017/1001 instead of the provisions of Regulation No 207/2009 having identical content. In view of the date on which the application for registration at issue was filed, namely 20 November 2001, which is decisive for the purpose of identifying the applicable substantive law, the facts of the present case are governed by the substantive provisions of Regulation No 40/94 (see, to that effect, order of 5 October 2004, Alcon v OHIM , C‑192/03 P, EU:C:2004:587, paragraphs 39 and 40, and judgment of 23 April 2020, Gugler France v Gugler and EUIPO , C‑736/18 P, not published, EU:C:2020:308 , paragraph 3 and the case-law cited). Furthermore, given that, according to settled case-law, procedural rules are generally deemed to apply on the date on which they enter into force (see judgment of 11 December 2012, Commission v Spain , C‑610/10, EU:C:2012:781, paragraph 45 and the case-law cited), the dispute is governed by the procedural provisions of Regulation 2017/1001 and 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). However, in the present case, as regards the admissibility of the evidence submitted for the first time at the stage of the appeal before the Fourth Board of Appeal, that issue should be assessed in the light of the procedural provisions applicable on the date on which that evidence was filed. Accordingly, in the present case, it is the provisions of Regulation No 207/2009 and Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Regulation No 40/94 (OJ 1995 L 303, p. 1) which are applicable to the evidence referred to in paragraph 8 above. Consequently, as regards the substantive rules, the references made by the Board of Appeal in the contested decision, as well as by the parties in their written pleadings, to Article 7(1)(a) and (b) and Article 59(1)(a) of Regulation 2017/1001 and to Article 7(1)(a) and (b) and Article 52(1)(a) of Regulation No 207/2009 must be understood as referring to Article 7(1)(a) and (b) and Article 51(1)(a) of Regulation No 40/94, which are identical in content. As regards the procedural provisions applicable to the evidence submitted for the first time at the stage of the appeal before the Fourth Board of Appeal, the references made by EUIPO and by the intervener to Article 95(2) of Regulation 2017/1001 must be understood as referring to Article 76(2) of Regulation No 207/2009, which is identical in content. B. The claim for annulment The applicant relies on four pleas in law, alleging, first, infringement of Article 72(6) of Regulation 2017/1001, second, infringement of Article 76(2) of Regulation No 207/2009 and of Rule 37 and Rule 50(1) of Regulation No 2868/95, third, infringement of Article 51(1)(a) of Regulation No 40/94, read in conjunction with Article 7(1)(c) of that regulation, and fourth, infringement of Article 51(1)(a) of Regulation No 40/94, read in conjunction with Article 7(1)(b) of that regulation. The Court considers it appropriate to begin by examining the second plea in law. 1. The second plea in law, alleging infringement of Article 76 (2) of Regulation No 2 07/2009 and of Rule 37 and Rule 50(1) of Regulation No 2 868/95 The present plea is divided into two parts. (a) The first part of the second plea in law , relating to the applicability of Rule 50 of Regulation No 2 868/95 In this part, the applicant argues that the Board of Appeal based its analysis concerning the consideration of evidence submitted for the first time before it on the incorrect premiss that Rule 50 of Regulation No 2868/95 was applicable. In so doing, that Board of Appeal made an error of law. The applicant adds that the outcome of the analysis would have been different without that error. EUIPO and the intervener dispute the applicant’s assertions. In the present case, it must be noted that, in paragraph 40 of the contested decision, the Board of Appeal, after referring to the content of Rule 50(1) of Regulation No 2868/95, stated that that provision applied mutatis mutandis to invalidity proceedings. As is apparent from, in particular, paragraph 38 of the judgment of 7 June 2023, FITNESS (T‑519/22, EU:T:2023:314 ), and as has been found by both the General Court and the Court of Justice in the first annulment judgment and the judgment on appeal, respectively, Rule 50(1) of Regulation No 2868/95 is not applicable in the context of invalidity proceedings based on absolute grounds for invalidity. However, it must be stated that the General Court considered, in paragraph 39 of the judgment of 7 June 2023, FITNESS (T‑519/22, EU:T:2023:314 ), that it was not apparent from either the revocation decision or the contested decision that the reference, in paragraph 40 of the contested decision, to Rule 50(1) of Regulation No 2868/95 might have had an influence on the findings of the Board of Appeal as regards the possibility of accepting the evidence newly submitted by the applicant to the extent that that error did not allow the operative part of the contested decision to be maintained without a new analysis. Likewise, in paragraph 44 of that judgment, the Court reached the conclusion that it had not been demonstrated that the incorrect reference to Rule 50(1) of Regulation No 2868/95 had had an impact on the reasoning followed by the Board of Appeal in the contested decision or on its finding. Therefore, as has already been held, and as is also maintained by EUIPO and the intervener in the present case, the error made by the Board of Appeal has no impact on the legality of the contested decision. In those circumstances, the first part of the second plea in law, relating to the applicability of Rule 50(1) of Regulation No 2868/95, must be rejected as ineffective. (b) The second part of the second plea in law , alleging infringement of Article 76 (2) of Regulation No 2 07/2009 In this part, the applicant argues that the evidence submitted for the first time at the appeal stage should have been taken into account by the Board of Appeal, given that it was supplementary evidence. Likewise, the applicant alleges that the Board of Appeal exercised its discretion incorrectly. In the first place, the applicant claims to have submitted new evidence intended to refute the Cancellation Division’s findings and to confirm the content of the evidence submitted before it. It argues that that division disregarded a large part of the evidence initially submitted and limited its assessment to a fraction of the evidence, considering it to be insufficient. In the second place, the applicant submits that the Board of Appeal, by incorrectly applying the criteria relating to the assessment of evidence submitted late, made an error of law. First of all, the applicant maintains that the Board of Appeal, which rejected the new evidence because no ‘new factor’ justified the late submission of that evidence, laid down a condition capable of depriving Article 76(2) of Regulation No 207/2009 of any useful effect. It argues that the Board of Appeal made an error of law in so far as it limited the cases in which it could exercise its discretion positively to situations in which there was a new factor. According to the applicant, that Board of Appeal should have determined whether the stage of the proceedings at which that late submission occurred and the circumstances surrounding it precluded that evidence being taken into account. As for the existence of a ‘new factor’, a condition which is certainly relevant, it could not have been considered a mandatory condition. Next, the applicant states that there is such a ‘new factor’ in the present case and that it results from the grounds of the Cancellation Division’s decision. It maintains that the new evidence was intended to challenge the Cancellation Division’s conclusion that the evidence initially submitted was inadequate and insufficient and not to replace the evidence initially submitted. In addition, the applicant argues that the considerations of the judgment of 22 September 2011, Cesea Group v OHIM - Mangini & C. (Mangiami) (T‑250/09, not published, EU:T:2011:516), to which the Board of Appeal referred, are not applicable mutatis mutandis to the present case. In that regard, it argues, first, that that judgment was given taking into account Rule 22(2) of Regulation No 2868/95, a provision which cannot be applied in the present case, including by analogy, as the Board of Appeal did. Furthermore, the applicant submits that the considerations of the General Court in paragraph 64 of the first annulment judgment apply mutatis mutandis to Rule 22(2) of Regulation No 2868/95. Second, the applicant argues that, unlike the circumstances of the case which gave rise to the judgment of 22 September 2011, Mangiami (T‑250/09, not published, EU:T:2011:516), the new evidence was not submitted in order to remedy the fact that the evidence initially submitted was insufficient, but rather to demonstrate that the evidence initially submitted had been wrongly rejected by the Cancellation Division. Third, the applicant submits that, in that judgment, the Court stated that the Cancellation Division’s reasoning could not in itself be considered as a factor justifying the submission of new evidence. In the present case, by contrast, several other factors justify the submission of new evidence. Fourthly, the applicant refers to paragraphs 40 to 42 of the judgment of 4 June 2015, Stayer Ibérica v OHIM - Korporaciya ‘Masternet’ (STAYER) (T‑254/13, not published, EU:T:2015:362 ), where account was taken in particular of the question whether or not the party which had produced the evidence submitted late had abused the prescribed time limits while demonstrating manifest negligence. Furthermore, in its observations following the judgment of 7 June 2023, FITNESS (T‑519/22, EU:T:2023:314 ), the applicant argued that the absence of an obvious error which could have led to the revocation of the contested decision did not mean that there was no error capable of leading to the annulment of that decision in the present proceedings. Therefore, according to it, that judgment cannot have any impact on the present proceedings and the Court must analyse all the pleas raised in the action in the light of the relevant criterion, namely the question whether the Board of Appeal made an error of law. EUIPO contends, as a preliminary point, that, in so far as Article 76(2) of Regulation No 207/2009 grants it a broad discretion in deciding whether or not to take into consideration evidence submitted late and, where the legislature has conferred a broad discretion on the authorities of the European Union, the scope of the judicial review by the EU judicature is limited to verifying whether there has been a manifest error of assessment or a misuse of powers, in the present case it is for the applicant to prove that the Board of Appeal made a manifest error of assessment in the exercise of the broad discretion conferred on it by the EU legislature. In that regard, EUIPO notes that the alleged errors on which the applicant’s plea is based were not classified by the Court as obvious errors within the meaning of Article 103 of Regulation 2017/1001. Although it accepts that ‘obvious errors’ within the meaning of the latter provision and ‘manifest errors of assessment’ within the meaning of the case-law concerning the review of decisions taken by an institution or body of the European Union in the exercise of its broad discretion are not synonymous in law, it maintains that there is a degree of overlap between those two concepts. From this, it infers that, at least in fact, it was unlikely that an assessment found not to constitute an obvious error within the meaning of Article 103 of Regulation 2017/1001 would be considered, at the same time, to be vitiated by a manifest error. In any event, EUIPO argues that the applicant fails to argue that the alleged errors were manifest and, thus, relies on the incorrect legal premiss that the Court should conduct a normal review of the legality of the Board of Appeal’s exercise of its broad discretion. In short, EUIPO considers that the applicant has not proved, to the requisite legal standard, that the alleged errors were such as to render the result of the assessment carried out by the Board of Appeal implausible or untenable. In view of (i) the fact that the evidence submitted before the Cancellation Division was insufficient and (ii) the fact that the applicant had not given any acceptable reason for not having submitted at the outset the evidence submitted late, the Board of Appeal did not make any manifest error in rejecting that evidence as inadmissible. The intervener first states that the applicant’s allegation is based on an incorrect interpretation of paragraph 42 of the judgment on appeal, which does not refer to evidence submitted late which, as in the present case, was not submitted to challenge a ground relied on by the Cancellation Division, but rather in response to such a ground and to rectify it. It adds that the objective and function of the Boards of Appeal is not to examine an application for a declaration of invalidity on the basis of different facts or evidence submitted as a reaction to legal guidance given by a first instance decision. The intervener submits that the criterion for determining whether evidence is supplementary concerns the relevant evidence previously submitted before the Cancellation Division. In the present case, the evidence was gathered and submitted to establish the alleged meaning of the term ‘fitness’ at a different time and was not unavailable during the proceedings before the Cancellation Division. As regards the exercise by the Board of Appeal of its discretion, the intervener argues that judicial review limited to whether there has been a manifest error of assessment is similar to the concept of obvious error within the meaning of Article 103(1) of Regulation 2017/1001. In that regard, it is apparent from the judgment of 7 June 2023, FITNESS (T‑519/22, EU:T:2023:314 ), that the approach of disregarding evidence submitted late and the reasoning relating thereto were not vitiated by such an error. In any event, the intervener maintains that the application does not show any evidence of errors of assessment, misuse of powers or acting ultra vires. First, as regards the relevance of the judgment of 22 September 2011, Mangiami (T‑250/09, not published, EU:T:2011:516), the General Court held that that case-law relating to proof of use was not ‘manifestly impossible to transpose’ to invalidity proceedings. Second, as regards the requirement of a ‘new factor’, the intervener submits that the Board of Appeal did not consider that this was mandatory in order to justify the late submission of evidence, but would also have accepted ‘some other sound justification’. Third, the intervener argues that the applicant fails to recognise that the providing of adequate reasons for the late submission of evidence is one of the key factors in the analysis carried out using the discretion referred to in Article 76(2) of Regulation No 207/2009. In the present case, the Board of Appeal rightly placed particular emphasis on that factor and held, in essence, that the lack of adequate reasons outweighed other considerations. Furthermore, in its observations filed following the judgment of 7 June 2023, FITNESS (T‑519/22, EU:T:2023:314 ), the intervener argued that, in that judgment, the Court had confirmed the Board of Appeal’s position that the Cancellation Division’s decision was not a ‘new factor’. The Court considered, in paragraph 47 of that judgment, that the finding of the Board of Appeal was a ‘consequence’ of the reasoning followed. In the present case, the Board of Appeal noted, first, that the evidence initially submitted before the Cancellation Division had been considered insufficient, but that such a finding would not have automatically prohibited the submission of other evidence intended to remedy that fact and to strengthen the initial evidence. Second, that Board of Appeal considered that the additional evidence submitted before it was prima facie relevant and that the relevance of the evidence lay in the fact that that evidence was intended to strengthen the initial evidence relating to dictionary entries and to prove the use and understanding of the term ‘fitness’ during the relevant period in relation to the concept of ‘nutrition’ (paragraph 47 of the contested decision). Third, the Board of Appeal considered that that evidence could already have been submitted before the Cancellation Division (paragraph 52 of the contested decision). In that regard, it noted that the applicant’s only argument to justify the late submission of evidence was that that evidence was provided in response to the Cancellation Division’s findings concerning the lack of arguments and evidence submitted in due time (paragraph 53 of the contested decision). The Board of Appeal, however, considered that the Cancellation Division’s finding that the evidence submitted was insufficient could not be regarded as a new factor justifying the submission of additional evidence for the first time before it and, in that regard, referred to the findings set out in paragraphs 26 and 27 of the judgment of 22 September 2011, Mangiami (T‑250/09, not published, EU:T:2011:516), which it considered to be transposable ‘to the present invalidity context’. In that regard, it added that, during the proceedings before the Cancellation Division, the applicant was well aware of the possibility that the evidence it had submitted might be considered insufficient and that the relevant provisions concerning the submission of evidence, namely Rule 37(b)(iv) and Rule 39(3) of Regulation No 2868/95, were quite strict and that the admission of the additional evidence submitted for the first time before the Board of Appeal without valid justification would have deprived those provisions of their effect (paragraphs 54 to 57 of the contested decision). In essence, the Board of Appeal considered that the applicant had to provide a ‘new factor’ or some other valid explanation to justify the submission of additional evidence at the appeal stage. However, this was not done in the present case (paragraphs 58 and 59 of the contested decision). Recalling that any party bringing an action is required to exercise due diligence and thoroughness in that regard and that it was necessary to adopt a strict approach to the submission of new evidence in order to provide the proceedings with a sufficient degree of legal certainty and predictability, the Board of Appeal concluded that the applicant had not provided adequate reasons for the late submission of the additional evidence and that, therefore, there was no need to accept that evidence in the present case. It added that the fact that the evidence submitted at first instance was insufficient and the fact that no acceptable reason had been given for that late submission outweighed the other considerations in question (paragraphs 60 to 62 of the contested decision). (1) Preliminary observations Under Article 76(2) of Regulation No 207/2009, EUIPO ‘may disregard facts or evidence which are not submitted in due time by the parties concerned’. It results from the wording of that provision that, as a general rule and unless otherwise specified, the submission of facts and evidence by the parties remains possible after the expiry of the periods to which such submission is subject under the provisions of Regulation No 207/2009 and that EUIPO is in no way prohibited from taking account of facts and evidence which are submitted or produced late (see judgment of 26 September 2013, Centrotherm Systemtechnik v OHIM and centrotherm Clean Solutions , C‑610/11 P, EU:C:2013:593, paragraph 77 and the case-law cited). However, it is equally apparent from that wording that such late submission or provision of facts and evidence is not such as to confer on the party submitting such facts and evidence an unconditional right to have those facts and that evidence taken into account by EUIPO. In stating that EUIPO ‘may’ decide to disregard such facts and evidence, that provision grants EUIPO a broad discretion to decide, while giving reasons for its decision in that regard, whether or not to take such information into account (judgment of 13 March 2007, OHIM v Kaul , C‑29/05 P, EU:C:2007:162 , paragraph 43). Thus, where EUIPO is called upon to give judgment in the context of invalidity proceedings, taking into account facts or evidence submitted late is particularly likely to be justified where EUIPO considers, first, that the material which has been submitted late is, on the face of it, likely to be genuinely relevant to the outcome of the application for a declaration of invalidity brought before it and, second, that the stage of the proceedings at which that late submission takes place and the circumstances surrounding it do not argue against such material being taken into account (see judgment of 28 February 2018, mobile.de v EUIPO , C‑418/16 P, EU:C:2018:128 , paragraph 63 and the case-law cited). It must be stated that the abovementioned case-law balances the possibility for the parties to submit additional or new evidence, the legal certainty of the proprietors of EU trade marks and the discretion of EUIPO, and in particular of the Boards of Appeal, as to the admissibility of such evidence. As regards the present case, the Court of Justice has already stated, in paragraph 42 of the judgment on appeal, that it is always possible to submit evidence in due time for the first time before the Board of Appeal in so far as that evidence is intended to challenge the grounds relied on by the Cancellation Division in the contested decision. That evidence is, therefore, either evidence supplementary to that submitted in the proceedings before the Cancellation Division or evidence concerning a new matter which could not be raised during those proceedings. It added, in paragraph 43 of that judgment, that it is for the party submitting the evidence for the first time before the Board of Appeal to provide reasons why that evidence is being submitted at that stage of the proceedings and to demonstrate that such submission was impossible during the proceedings before the Cancellation Division. Furthermore, it must be noted that Article 27(4) of Delegated Regulation 2018/625, under which, in accordance with Article 95(2) of Regulation 2017/1001, a Board of Appeal may accept facts or evidence submitted for the first time before it only where such facts or evidence are, on the face of it, likely to be relevant for the outcome of the case and where the facts or evidence have not been submitted 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, is not applicable in the present case. Title V of Delegated Regulation 2018/625, of which that provision forms part, does not apply to appeals entered before 1 October 2017 under Article 82(j) of that delegated regulation. This is the situation in the present case, given that the notice of appeal was filed on 16 December 2013. It is in the light of the foregoing considerations that the complaints put forward by the applicant must be examined. (2) The need to point to the existence of a ‘new factor’ in order to justify the late submission of evidence In the first place, the applicant disputes the need, required by the Board of Appeal, to point to the existence of a ‘new factor’ in order to justify the ‘late’ submission of evidence. In the present case, as is apparent from paragraph 43 et seq. of the contested decision, the Board of Appeal, referring to paragraph 44 of the second annulment judgment, which cites paragraphs 42 and 43 of the judgment on appeal, examined in particular whether the applicant had provided reasons why the evidence had been submitted, for the first time, before it and had demonstrated that such submission was impossible during the proceedings before the Cancellation Division. Consequently, that Board of Appeal reached the conclusion, in particular, that the additional evidence could already have been submitted before the Cancellation Division (paragraph 52 of the contested decision) and that the finding by the Cancellation Division that the evidence was insufficient could not be regarded as a new factor justifying the submission of additional evidence for the first time before it (paragraph 54 of the contested decision). In that regard, it must be stated that the Board of Appeal, in considering, in essence, that it was necessary to point to the existence of a new factor in order to justify the submission of additional evidence for the first time before it, merely applied the case-law, namely paragraph 43 of the judgment on appeal as referred to in paragraph 44 of the second annulment judgment (see paragraph 61 above). It follows that the applicant cannot validly claim that the Board of Appeal made an error of law in that regard. That conclusion cannot be called into question by the applicant’s argument that the Board of Appeal should have examined whether the stage of the proceedings at which the late submission of the evidence at issue was made did not preclude that evidence being taken into account. That criterion, developed in the case-law relating to opposition proceedings and, moreover, referred to in paragraph 43 of the contested decision, is independent of the obligation, for a party submitting additional evidence before the Board of Appeal, to justify that submission by means of a valid reason. The applicant’s present complaint can only be rejected. (3) Whether there was a ‘new factor’ in the present case The applicant submits, in essence, that the ‘new factor’ justifying the submission of the additional evidence results from the Cancellation Division’s decision and that that evidence was intended to challenge the conclusion of that division that the evidence initially submitted was inadequate and insufficient. Likewise, it disputes the relevance of the judgment of 22 September 2011, Mangiami (T‑250/09, not published, EU:T:2011:516), in the present case, stating, in particular, that the evidence submitted by it was not submitted in order to remedy the fact that the evidence initially submitted was insufficient, but rather to demonstrate that the Cancellation Division’s reasoning was incorrect. As has already been stated in paragraph 54 above, the Board of Appeal considered that the Cancellation Division’s finding that the evidence submitted was insufficient could not be regarded as a new factor justifying the submission of additional evidence for the first time at the appeal stage. Furthermore, as is clear from the considerations set out in paragraph 66 above, the submission of additional or new evidence for the first time before the Board of Appeal must be justified. The question which arises in the present case is whether the Cancellation Division’s findings constitute a ‘new factor’, that is to say, a valid reason, justifying such submission. In that regard, it should be noted that the General Court held, in paragraph 26 of the judgment of 22 September 2011, Mangiami (T‑250/09, not published, EU:T:2011:516), that the Cancellation Division’s reasoning, which had led to a finding of insufficient proof of 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. It further stated, in paragraph 27 of that judgment, that the acceptance of such reasoning by the Cancellation Division as constituting a new factor would have considerably limited the scope of the time limit provided for in Rule 22(2) of Regulation No 2868/95. This would have meant that whenever the Board of Appeal held that the Cancellation Division had been wrong to find that the proof of use provided was insufficient, it would be able to accept additional proof of use submitted before it for the first time. However, it must be recalled, as the applicant did, that the Court held, in paragraph 64 of the first annulment judgment, that the application by analogy of the third subparagraph of Rule 50(1) of Regulation No 2868/95 - which relates to opposition proceedings - to invalidity proceedings based on absolute grounds for invalidity would run counter to the general interest pursued by the provisions of Article 7 of Regulation No 40/94. The same applies to the case-law relating to Rule 22(2) of Regulation No 2868/95, in particular because of the applicability of that rule to procedures requiring proof of use of the earlier mark, namely opposition proceedings and invalidity proceedings based on relative grounds for invalidity. Likewise, it must also be borne in mind that the purpose of invalidity proceedings based on absolute grounds for invalidity is, inter alia, to enable EUIPO to review the validity of the registration of a mark and to adopt, where necessary, a position which it should have adopted of its own motion (order of 30 April 2015, Castel Frères v OHIM , C‑622/13 P, not published, EU:C:2015:297 , paragraph 42). The application of the considerations of the judgment of 22 September 2011, Mangiami (T‑250/09, not published, EU:T:2011:516), to invalidity proceedings based on absolute grounds for invalidity would considerably limit that possibility. Accordingly, in considering, with reference to the judgment of 22 September 2011, Mangiami (T‑250/09, not published, EU:T:2011:516), that the Cancellation Division’s decision was not a ‘new factor’ which could justify the late submission of evidence during the appeal proceedings, the Board of Appeal made an error of law. The Court did indeed consider, in paragraph 49 of the judgment of 7 June 2023, FITNESS (T‑519/22, EU:T:2023:314 ), that the reference, by analogy, to the judgment of 22 September 2011, Mangiami (T‑250/09, not published, EU:T:2011:516), could not be classified as an obvious error within the meaning of Article 103 of Regulation 2017/1001. In that regard, it should be recalled that the ‘obvious’ or flagrant nature of the error justifying the adoption of a decision revoking an earlier decision refers to errors which are highly obvious and do not allow the operative part of that earlier decision to be maintained without a new analysis which will be carried out subsequently by the department which took that decision (see judgment of 22 September 2021, Marina Yachting Brand Management v EUIPO - Industries Sportswear (MARINA YACHTING) , T‑169/20, EU:T:2021:609, paragraph 111 and the case-law cited). However, the application of the judgment of 22 September 2011, Mangiami (T‑250/09, not published, EU:T:2011:516), by the Board of Appeal in the present case constitutes an error of law, as the applicant maintains. In those circumstances, it is also necessary to reject the line of argument of EUIPO and the intervener that, given that, first, the Board of Appeal enjoys a broad discretion in the application of Article 76(2) of Regulation No 207/2009 and that, consequently, the Court’s review is limited to whether there has been a manifest error of assessment and, second, the Court has already found that the reference to the judgment of 22 September 2011, Mangiami (T‑250/09, not published, EU:T:2011:516), could not be regarded as an obvious error within the meaning of Article 103 of Regulation 2017/1001, the question has already been decided and that, in any event, the applicant has not demonstrated the existence of a manifest error of assessment in the present case. In that regard, it is sufficient to note that the applicant claims that an error of law has been made with regard to the assessment criteria relating to the admission of evidence submitted for the first time before the Board of Appeal. Likewise, the discretion enjoyed by the Board of Appeal in applying Article 76(2) of Regulation No 207/2009 concerns the examination of the factual circumstances of the case and not the legal criteria to be taken into account in that assessment. Furthermore, and in any event, the fact that there is no obvious error within the meaning of Article 103 of Regulation 2017/1001 cannot automatically be considered to mean that there is no manifest error of assessment, given that the two concepts do not meet the same case-law criteria. As for the intervener’s argument that the Court, in the judgment of 7 June 2023, FITNESS (T‑519/22, EU:T:2023:314 ), first, confirmed the Board of Appeal’s position that the Cancellation Division’s decision was not a ‘new factor’ and, second, considered, in paragraph 47 of that judgment, that the Board of Appeal’s conclusion was a ‘consequence’ of the reasoning followed, that argument can only result from an incorrect reading of that judgment. It follows from the foregoing considerations that the sole reason put forward by the Board of Appeal for considering that the applicant had not submitted a ‘new factor’ justifying the submission of additional evidence is vitiated by an error of law. It follows that the Board of Appeal did not put forward valid reasons for rejecting the evidence submitted for the first time at the appeal stage. As has been stated in paragraph 53 above, that Board of Appeal considered that that evidence was prima facie relevant inasmuch as it was intended to strengthen the initial evidence relating to dictionary entries and to prove the use and understanding of the term ‘fitness’ during the relevant period in relation to nutrition. It should also be added that, according to the Board of Appeal, the fact that the evidence submitted at first instance was insufficient and the fact that no acceptable reason had been given for that late submission outweighed the other considerations in question (see paragraph 55 above). In the light of the foregoing considerations, the second part of the present plea in law must be upheld and, accordingly, the contested decision must be annulled, without it being necessary to examine the other pleas in law relied on by the applicant. C. The claim for alteration By its second head of claim, the applicant claims that the Court should, in the alternative, alter the contested decision and uphold the appeal against the Cancellation Division’s decision. In that regard, the intervener maintains that the applicant’s head of claim must be rejected under Article 72(3) of Regulation 2017/1001, which concerns the Court’s jurisdiction, and, in any event, on the merits. As regards the Court’s jurisdiction to hear and determine the applicant’s second head of claim, it must be stated that, under Article 72(3) of Regulation 2017/1001, the Court has jurisdiction both to annul and to alter the contested decision. By that head of claim, the applicant requests the alteration of the contested decision by claiming that the appeal against the Cancellation Division’s decision should be upheld. It follows that that head of claim must be regarded as having been brought before a court with jurisdiction to hear and determine it. As regards the examination of the applicant’s second head of claim on the merits, it should be borne in mind that the power to alter decisions, conferred on the General Court under Article 72(3) of Regulation 2017/1001, must in principle be limited to situations in which the General Court, after reviewing the assessment made by the Board of Appeal, is able to determine, on the basis of the matters of fact and of law as established, what decision the Board of Appeal was required to take (judgment of 5 July 2011, Edwin v OHIM , C‑263/09 P, EU:C:2011:452 , paragraph 72). As regards the question whether the conditions for alteration are satisfied in the present case, it should be noted that the Board of Appeal, in the contested decision, did not assess the evidence submitted by the applicant for the first time at the appeal stage, but merely rejected it. Admittedly, that evidence was examined by the Second Board of Appeal in the decision of 6 June 2018. However, that decision was annulled by the second annulment judgment (see paragraph 15 above). It should be recalled in that regard that a judgment annulling a measure takes effect ex tunc and thus has the effect of retroactively eliminating the annulled measure from the legal order (see judgment of 1 September 2021, Gruppe Nymphenburg Consult v EUIPO (Limbic® Types) , T‑96/20, EU:T:2021:527, paragraph 28 and the case-law cited). Consequently, the Court cannot rely on the assessments made in a decision retroactively eliminated from the EU legal order. It follows that the conditions for the exercise of the Court’s power to alter decisions are not satisfied in the present case. In so far as the Board of Appeal, in the contested decision, did not examine the relevance of the evidence submitted for the first time at the appeal stage, the Court is not in a position to determine, on the basis of the matters of fact and of law as established, what decision that Board of Appeal was required to take. Consequently, the claim for alteration must be rejected. IV. Costs 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. Since EUIPO and the intervener have been unsuccessful in the present case, they must be ordered to pay the costs in accordance with the form of order sought by the applicant. On those grounds, THE GENERAL COURT (Sixth Chamber) hereby: 1. Annuls the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 12 October 2021 (Case R 894/2020-1); 2. Dismisses the action as to the remainder; 3. Orders EUIPO and Société des produits Nestlé SA to pay the costs. Costeira Öberg Zilgalvis Delivered in open court in Luxembourg on 27 November 2024. V. Di Bucci S. Papasavvas Registrar President * Language of the case: English. © European Union The source of this judgment is the Europa web site. The information on this site is subject to a information found here: Important legal notice . This electronic version is not authentic and is subject to amendment. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII