Corte di giustizia UE n. 207/2017

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 12 October 2017 ( * ) (EU trade mark — [OSCURATO:PERSONA] proceedings — Application for EU word mark SDC‑888TII RU — Earlier non-registered national word mark SDC‑888TII RU — Relative ground for refusal — [OSCURATO:PERSONA] 8(4) of [OSCURATO:PERSONA] (EC) No 207/2009 (now [OSCURATO:PERSONA] 8(4) of [OSCURATO:PERSONA] (EU) 2017/1001) — Evidence establishing the content of national law — Rule 19(2)(d) of [OSCURATO:PERSONA] (EC) No 2868/95 (now [OSCURATO:PERSONA] 7(2)(d) of [OSCURATO:PERSONA] (EU) 2017/1430) — Production of evidence for the first time before the [OSCURATO:PERSONA] of Appeal — Discretion of the [OSCURATO:PERSONA] of Appeal — [OSCURATO:PERSONA] 76(2) of [OSCURATO:PERSONA] 207/2009 (now [OSCURATO:PERSONA] 95(2) of [OSCURATO:PERSONA] 2017/1001)) [OSCURATO:PERSONA] T‑317/16, [OSCURATO:PERSONA] spol. s r. o., established in Brno ([OSCURATO:PERSONA]), represented by M. Kyjovský, lawyer, applicant, v [OSCURATO:PERSONA] (EUIPO), represented by D. Gája, acting as Agent, defendant, the other party to the proceedings before the [OSCURATO:PERSONA] of Appeal of EUIPO and intervener before the [OSCURATO:PERSONA], being [OSCURATO:PERSONA] GmbH, established in Stuttgart (Germany), represented by C. von Donat, J. Lipinsky, J. Hagenberg, T. Hollerbach and C. Nitschke, lawyers, ACTION brought against the decision of the [OSCURATO:PERSONA] of Appeal of EUIPO of 1 April 2016 ([OSCURATO:PERSONA] R 1566/2015-2), relating to opposition proceedings between [OSCURATO:PERSONA] and [OSCURATO:PERSONA], [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of S. [OSCURATO:PERSONA], [OSCURATO:PERSONA], L. [OSCURATO:PERSONA] and R. da [OSCURATO:PERSONA] (Rapporteur), [OSCURATO:PERSONA], [OSCURATO:PERSONA]: X. [OSCURATO:PERSONA], [OSCURATO:PERSONA], having regard to the application lodged at the [OSCURATO:PERSONA] on 21 June 2016, having regard to the response of EUIPO lodged at the [OSCURATO:PERSONA] on 24 October 2016, having regard to the response of the intervener lodged at the [OSCURATO:PERSONA] on 2 December 2016, having regard to the decision of 9 March 2017 joining Cases T‑316/16 to T‑318/16 for the purposes of the oral procedure, further to the hearing on 11 May 2017, gives the following [OSCURATO:PERSONA] to the dispute 1 On 10 April 2014 the intervener, [OSCURATO:PERSONA] GmbH, filed an application for registration of an EU trade mark with the [OSCURATO:PERSONA] (EUIPO) pursuant to [OSCURATO:PERSONA] (EC) No 207/2009 of 26 February 2009 on the [OSCURATO:PERSONA] trade mark (OJ 2009 L 78, p. 1), as amended (replaced by [OSCURATO:PERSONA] (EU) 2017/1001 of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] of 14 June 2017 on the [OSCURATO:PERSONA] trade mark (OJ 2017 L 154, p. 1)). 2 Registration as a mark was sought for the word mark SDC‑888TII RU. 3 The goods in respect of which registration was sought are in Class 9 of the [OSCURATO:PERSONA] concerning the [OSCURATO:PERSONA] of Goods and Services for the Purposes of the Registration of [OSCURATO:PERSONA] of 15 June 1957, as revised and amended, and correspond to the following description: ‘Pocket calculators; Calculators’. 4 The EU trade mark application was published in [OSCURATO:PERSONA] 2014/076 of 24 April 2014. 5 On 22 July 2014 the applicant, [OSCURATO:PERSONA] spol. s r. o., filed a notice of opposition, pursuant to [OSCURATO:PERSONA] 41 of [OSCURATO:PERSONA] 207/2009 (now [OSCURATO:PERSONA] 46 of [OSCURATO:PERSONA] 2017/1001), to registration of the mark applied for in its entirety. 6 In support of its opposition, the applicant relied, in the first place, on the existence of an earlier right arising from a non-registered word mark that is identical to the mark applied for, on the basis that such right existed at least in the territory of the [OSCURATO:PERSONA]. That non-registered word mark related to calculators. 7 The applicant stated that it had used the non-registered mark prior to the lodging of the application for registration of the trade mark applied for, in particular when placing an order in October 2013 for the delivery of calculators from [OSCURATO:PERSONA] (China). As evidence in that regard, the applicant presented a two-page document headed ‘Sales confirmation’ and dated 8 October 2013. 8 In the second place, the applicant claimed that the intervener had acted in bad faith. However, following a communication from EUIPO of 5 August 2014 stating, inter alia, that such a ground may be relied on only in the context of invalidity proceedings against a registered EU trade mark, the applicant indicated, in a letter to EUIPO dated 10 December 2014, that it was no longer alleging that the trade mark applicant had acted in bad faith. 9 In the third place, the applicant claimed that the mark applied for is devoid of distinctive character. 10 By decision of 5 June 2015, the [OSCURATO:PERSONA] of EUIPO dismissed the opposition lodged by the applicant and ordered it to pay the costs. [OSCURATO:PERSONA] observed that the applicant had failed to submit information or provide evidence concerning the applicable national right on which it was relying and pursuant to which the use of the mark applied for could have been prohibited in the relevant [OSCURATO:PERSONA], even after EUIPO had requested the applicant to substantiate its opposition. Furthermore, the [OSCURATO:PERSONA] pointed out that a lack of distinctive character in the mark applied for fell within [OSCURATO:PERSONA] 7 of [OSCURATO:PERSONA] 207/2009 (now [OSCURATO:PERSONA] 7 of [OSCURATO:PERSONA] 2017/1001) and, consequently, was not a valid ground in opposition proceedings. 11 On 4 August 2015 the applicant filed an appeal with EUIPO, pursuant to Articles 58 to 64 of [OSCURATO:PERSONA] 207/2009 (now Articles 66 to 71 of [OSCURATO:PERSONA] 2017/1001), against the decision of the [OSCURATO:PERSONA]. 12 The applicant annexed to its statement of grounds information concerning the relevant [OSCURATO:PERSONA] trade mark law and clarified the content of that law which covers the legal protection granted to non-registered signs. 13 By decision of 1 April 2016 (‘the contested decision’), the [OSCURATO:PERSONA] of Appeal of EUIPO dismissed the appeal. 14 First, the [OSCURATO:PERSONA] of Appeal took the view, in essence, that, in the course of the opposition proceedings, the applicant had not referred to the applicable statutory provisions and had not provided any information on the content of the rights relied on or the conditions to be fulfilled in the present case, which would allow EUIPO to assess whether the specific conditions laid down in those provisions were satisfied and whether, consequently, it was possible to prohibit use of the mark applied for under the law of the relevant [OSCURATO:PERSONA], namely the [OSCURATO:PERSONA]. [OSCURATO:PERSONA] of Appeal noted that the onus was on the applicant to identify and provide all necessary information to demonstrate that the earlier mark came within the scope of application of the national law and that such law conferred the right to prohibit the use of a subsequent mark. 15 As regards the information on [OSCURATO:PERSONA] law which the applicant submitted for the first time before the [OSCURATO:PERSONA] of Appeal, the latter held that such information could not be held to be ‘additional’ or ‘supplementary’ and was, therefore, inadmissible. Indeed, the [OSCURATO:PERSONA] of Appeal does not have the discretion to accept evidence out of time. 16 [OSCURATO:PERSONA] of Appeal then added that, even if the evidence submitted for the first time before it had to be considered ‘additional’ or ‘supplementary’, thus enabling it to exercise discretion as to whether or not to accept that evidence out of time, it would have exercised such discretion by not taking it into consideration. According to the [OSCURATO:PERSONA] of Appeal, it is clear from the wording of [OSCURATO:PERSONA] 76(2) of [OSCURATO:PERSONA] 207/2009 (now [OSCURATO:PERSONA] 95(2) of [OSCURATO:PERSONA] 2017/1001) that the fact that a party has invoked or produced facts and evidence out of time does not confer on it an unconditional right to have those facts and evidence taken into consideration. [OSCURATO:PERSONA] of Appeal concluded that the circumstances surrounding the late filing of that evidence by the applicant were not capable of justifying such a delay. 17 As regards the argument alleging that the intervener had acted in bad faith, which the applicant raised again, despite stating, during the procedure before the [OSCURATO:PERSONA], that it was no longer relying on that ground, the [OSCURATO:PERSONA] of Appeal reiterated that, pursuant to [OSCURATO:PERSONA] 41 of [OSCURATO:PERSONA] 207/2009, an opposition may be brought on the basis of [OSCURATO:PERSONA] 8 of that regulation (now [OSCURATO:PERSONA] 8 of [OSCURATO:PERSONA] 2017/1001) and stated that, as that provision does not refer to bad faith as a ground for opposition, it would not consider that ground. 18 Last, the [OSCURATO:PERSONA] of Appeal, relying on case-law, noted that the issue addressed during the opposition proceedings was not a matter of determining whether or not the contested sign was distinctive and had to be registered under [OSCURATO:PERSONA] 7(1)(b) of [OSCURATO:PERSONA] 207/2009 (now [OSCURATO:PERSONA] 7(1)(b) of [OSCURATO:PERSONA] 2017/1001), but rather of deciding whether the contested sign had to be refused due to the existence of an earlier right within the meaning of [OSCURATO:PERSONA] 8(4) of that regulation (now [OSCURATO:PERSONA] 8(4) of [OSCURATO:PERSONA] 2017/1001). Forms of order sought 19 The applicant claims that the [OSCURATO:PERSONA] should: –        annul the contested decision; –        order EUIPO to pay the costs. 20 EUIPO and the intervener contend that the [OSCURATO:PERSONA] should: –        dismiss the application; –        order the applicant to pay the costs. [OSCURATO:PERSONA] 21 EUIPO claims that the action is manifestly inadmissible. The intervener maintains, for its part, that the action is inadmissible, in as much as it is based on [OSCURATO:PERSONA] 52(1)(b) of [OSCURATO:PERSONA] 207/2009 (now [OSCURATO:PERSONA] 59(1)(b) of [OSCURATO:PERSONA] 2017/1001). The plea of inadmissibility raised by EUIPO 22 According to EUIPO, the dismissal, by the [OSCURATO:PERSONA] of Appeal, of the action against the decision of the [OSCURATO:PERSONA] was justified on two grounds. First, the [OSCURATO:PERSONA] of Appeal had no discretion to accept the submissions filed with the statement of grounds. [OSCURATO:PERSONA], even if the [OSCURATO:PERSONA] of Appeal had had discretion and had exercised that discretion, it would still have dismissed the action. EUIPO maintains that the applicant does not, in the context of the present action, challenge the second ground justifying the contested decision. Consequently, even if the pleas of the applicant in relation to the first ground justifying the contested decision were to be upheld, they would still not suffice to annul that decision, since the operative part of the decision remains, in any event, justified on account of the second ground. In view of the foregoing, EUIPO concludes that the action is manifestly inadmissible. 23 In paragraph 21 of the application, the applicant justifies the late filing of specific references to [OSCURATO:PERSONA] law, on which the applicant was relying and pursuant to which the use of the mark applied for was allegedly capable of being prohibited in the relevant [OSCURATO:PERSONA]. For that purpose, the applicant maintains, in essence, that it submitted all of the evidence relating to its earlier right as a user of the non-registered sign within the time limit prescribed by EUIPO and that only the information on the national law was missing. The applicant adds that, pursuant to the principle iura novit curia , it was not necessary to file details of the specific provisions of [OSCURATO:PERSONA] law, which is accessible to the public. In addition, the applicant submits that EUIPO was obliged to clarify matters by indicating what specific information was lacking in its opposition so that the applicant could duly correct this. However, according to the applicant, EUIPO’s request for further details regarding the opposition was unclear and did not enable the applicant to understand what EUIPO’s specific criticisms of its opposition actually were. 24 In that regard, it is necessary to note that the applicant has invoked, in the context of the present application, reasons that, in its opinion, justified the late filing of the evidence in question. Thus, the applicant contests in general EUIPO’s position that that evidence that had been filed out of time could not be accepted. Even supposing that there is evidence in the case file that contradicts the argument submitted by the applicant, such a finding would relate to the substance of the action, rather than to its admissibility. Regardless of the justification given by the applicant for the late filing of its evidence during the administrative procedure, it therefore cannot be claimed, as EUIPO does, in essence, that the applicant is, in the present case, merely criticising the part of the contested decision in which the [OSCURATO:PERSONA] of Appeal found that it had no discretion as to the taking into account of that evidence. 25 In those circumstances, the plea of inadmissibility raised by EUIPO against the action should be rejected. The plea of inadmissibility raised by the intervener 26 The intervener maintains that, although the applicant stated, during the opposition proceedings, that it was no longer pursuing that ground, it appears to rely on [OSCURATO:PERSONA] 52(1)(b) of [OSCURATO:PERSONA] 207/2009 in order to challenge the contested decision. 27 In the present case, the applicant has, pursuant to [OSCURATO:PERSONA] 41 of [OSCURATO:PERSONA] 207/2009, brought opposition proceedings against the registration of an EU trade mark pursuant to [OSCURATO:PERSONA] 8(4) of that regulation. The intervener points out that [OSCURATO:PERSONA] 52(1)(b) of [OSCURATO:PERSONA] 207/2009, concerning bad faith on the part of the applicant when filing an application for an EU trade mark, is an absolute ground of invalidity and is not listed as a ground of opposition to the registration of an EU trade mark, with the consequence that it cannot be relied on in the context of opposition proceedings. Consequently, according to the intervener, that ground is inadmissible. 28 During the opposition proceedings, the applicant stated expressly to the [OSCURATO:PERSONA] that it was no longer invoking the bad faith of the intervener, on which it initially sought to rely. However, during the proceedings before the [OSCURATO:PERSONA] of Appeal, the applicant claimed once again that the request for registration of the contested sign resulted from bad faith on the part of the intervener, which led the [OSCURATO:PERSONA] of Appeal to find, in paragraph 85 of the contested decision, that, since opposition proceedings could be based on [OSCURATO:PERSONA] 8 of [OSCURATO:PERSONA] 207/2009 and that provision did not list bad faith as a ground of opposition, that issue would not be considered. 29 In addition, in paragraph 26 of its application, the applicant lists among the pleas advanced in support of its application, infringement of [OSCURATO:PERSONA] 52(1)(b) of [OSCURATO:PERSONA] 207/2009 without, however, submitting an argument to substantiate that assertion. During the hearing, when responding to a question put to it by the [OSCURATO:PERSONA], the applicant maintained that it still sought to rely on that plea. 30 It is necessary to note that, pursuant to [OSCURATO:PERSONA] 76(d) of the Rules of Procedure of the [OSCURATO:PERSONA], the application must contain a summary of the pleas in law on which the application is based and that summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the [OSCURATO:PERSONA] to rule on the action, if necessary without any other supporting information (see judgment of 18 September 2012, [OSCURATO:PERSONA] v OHIM — Bürgerbräu, Röhm & Söhne (BÜRGER) , T‑460/11, not published, EU:T:2012:432, paragraph 16 and the case-law cited). As the plea alleging an infringement of [OSCURATO:PERSONA] 52(1)(b) of [OSCURATO:PERSONA] 207/2009 patently does not comply with those requirements, that plea must be rejected as manifestly inadmissible. In addition, the reference to that plea at the present stage of the action is surprising, given that the applicant had expressly stated to the [OSCURATO:PERSONA] that it was no longer relying on the intervener’s bad faith. 31 It follows from the above that the plea in law alleging infringement of [OSCURATO:PERSONA] 52(1)(b) of [OSCURATO:PERSONA] 207/2009 must be dismissed as inadmissible. 32 For the sake of completeness, it should be noted that [OSCURATO:PERSONA] 52(1)(b) of [OSCURATO:PERSONA] 207/2009 sets out the absolute grounds for invalidity of an EU trade mark, including when the applicant acts in bad faith when filing its application for registration (judgment of 11 June 2009, [OSCURATO:PERSONA] & Sprüngli , C‑529/07, EU:C:2009:361, paragraphs 34 and 35), and therefore bad faith may be relied upon in the context of an application for a declaration of invalidity against a registered mark. However, as the intervener claims, the bad faith of the applicant for an EU trade mark is not included in [OSCURATO:PERSONA] 41 of [OSCURATO:PERSONA] 207/2009 among the grounds for opposition to the registration of an EU trade mark. Therefore, that plea must, in any event, be rejected. Substance 33 In support of its action, the applicant relies essentially on two pleas in law. The first plea alleges infringement of [OSCURATO:PERSONA] 8(4) and [OSCURATO:PERSONA] 76(1) of [OSCURATO:PERSONA] 207/2009 ([OSCURATO:PERSONA] 76(1) now being [OSCURATO:PERSONA] 95(1) of [OSCURATO:PERSONA] 2017/1001) and of Rule 50(1) of [OSCURATO:PERSONA] (EC) No 2868/95 of 13 December 1995 implementing [OSCURATO:PERSONA] (EC) No 40/94 on the [OSCURATO:PERSONA] trade mark (OJ 1995 L 303, p. 1). The second plea alleges infringement of [OSCURATO:PERSONA] 52(1)(b) of [OSCURATO:PERSONA] 207/2009. 34 Since the second plea has been rejected as inadmissible, it is only necessary to consider the first plea. 35 In support of that plea, the applicant claims that the [OSCURATO:PERSONA] of Appeal erred in its application of Rule 50(1) of [OSCURATO:PERSONA] 2868/95, read in conjunction with [OSCURATO:PERSONA] 76(2) of [OSCURATO:PERSONA] 207/2009, when, in the contested decision, it failed to take into account the facts and evidence submitted that had been put forward by the applicant. The applicant maintains that the [OSCURATO:PERSONA] of Appeal misconstrued its discretionary power in relation to evidence first submitted in the appeal proceedings against the decision of the [OSCURATO:PERSONA]. The applicant claims that, in the present case, it submitted all of the evidence regarding its earlier right as a user of a non-registered sign within the prescribed time limit and that only the information on national law was missing. Consequently, the applicant maintains that it cannot be stated that it failed to file any evidence during the opposition proceedings. The applicant also argues that in the contested decision the [OSCURATO:PERSONA] of Appeal erroneously applied the principles laid down in the judgment of 28 October 2015, [OSCURATO:PERSONA] v OHIM — Rakhat (Маска) (T‑96/13, EU:T:2015:813), since that judgment was delivered after the time limit for bringing an action again the [OSCURATO:PERSONA] decision. Consequently, the applicant submits, that judgment cannot be relevant for the present case. 36 EUIPO and the intervener dispute the applicant’s arguments. 37 As the arguments relied on by the applicant in its first plea overlap, it is necessary to examine them together. 38 [OSCURATO:PERSONA] 8(4) of [OSCURATO:PERSONA] 207/2009, the proprietor of a sign other than a registered trade mark may oppose registration of a [OSCURATO:PERSONA] trade mark if that sign satisfies all of four conditions: (i) the sign must be used in the course of trade; (ii) it must be of more than mere local significance; (iii) the right to that sign must have been acquired in accordance with EU law or the law of the [OSCURATO:PERSONA] in which the sign was used prior to the date of application for registration of the EU trade mark; and (iv) the sign must confer on its proprietor the right to prohibit the use of a subsequent trade mark (see judgment of 29 June 2016, [OSCURATO:PERSONA] v EUIPO — H [OSCURATO:PERSONA] (animal) , T‑727/14 and T‑728/14, not published, EU:T:2016:372, paragraph 22 and the case-law cited). Those conditions are cumulative; thus, where a sign does not satisfy one of those conditions, the opposition based on the existence of a non-registered trade mark or of other signs used in the course of trade within the meaning of [OSCURATO:PERSONA] 8(4) of [OSCURATO:PERSONA] 207/2009 cannot succeed (see judgment of 21 January 2016, [OSCURATO:PERSONA] Holder v OHIM — [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) , T‑62/14, not published, EU:T:2016:23, paragraph 20 and the case-law cited). 39 The first two conditions, namely those concerning the use and scope of the sign relied on, the latter having to be of more than mere local significance, arise from the wording itself of [OSCURATO:PERSONA] 8(4) of [OSCURATO:PERSONA] 207/2009 and must therefore be interpreted in the light of EU law. [OSCURATO:PERSONA] 207/2009 thus sets out uniform standards relating to the use of signs and their significance, which are consistent with the principles underlying the system established by that regulation (see judgment of 29 June 2016, animal , T‑727/14 and T‑728/14, not published, EU:T:2016:372, paragraph 23 and the case-law cited). 40 By contrast, it is apparent from the phrase ‘where and to the extent that, pursuant to ... the law of the [OSCURATO:PERSONA] governing that sign’ that the two other conditions, set out subsequently in [OSCURATO:PERSONA] 8(4)(a) and (b) of [OSCURATO:PERSONA] 207/2009, are conditions laid down by that regulation which, unlike the conditions above, must be assessed in the light of the criteria set by the law governing the sign relied on. That reference to the law governing the sign relied on is entirely justified, given that [OSCURATO:PERSONA] 207/2009 allows signs which fall outside of the EU trade mark system to be relied on against an EU trade mark. Therefore, only the law which governs the sign relied on can determine whether that sign predates the EU trade mark and whether it can justify a prohibition of the use of a subsequent trade mark. In accordance with [OSCURATO:PERSONA] 76(1) of [OSCURATO:PERSONA] 207/2009, the burden of proving that such condition is met lies with the opponent before EUIPO (see judgment of 29 June 2016, animal , T‑727/14 and T‑728/14, not published, EU:T:2016:372, paragraph 24 and the case-law cited). 41 With regard to the application of the provisions of [OSCURATO:PERSONA] 8(4)(b) of [OSCURATO:PERSONA] 207/2009, regard must be had, in particular, to the national rules relied on and to the judicial decisions delivered in the relevant [OSCURATO:PERSONA]. On that basis, the opponent must establish that the sign at issue falls within the scope of the law of the [OSCURATO:PERSONA] relied on and that it allows use of a subsequent mark to be prohibited (see judgment of 29 June 2016, animal , T‑727/14 and T‑728/14, not published, EU:T:2016:372, paragraph 25 and the case-law cited). 42 Rule 19(2)(d) of [OSCURATO:PERSONA] 2868/95 (now [OSCURATO:PERSONA] 7(2)(d) of [OSCURATO:PERSONA] (EU) 2017/1430 of 18 May 2017 supplementing [OSCURATO:PERSONA] 207/2009 and repealing [OSCURATO:PERSONA] 2868/95 and (EC) No 216/96 (OJ 2017 L 205, p. 1)) places on the opponent the burden of providing EUIPO not only with particulars showing that it satisfies the necessary conditions, in accordance with the national law that it is seeking to have applied, in order to be able to have the registration of an EU trade mark prohibited by reason of an earlier right, but also with particulars establishing the content of that law (see, to that effect and by analogy, judgment of 5 July 2011, Edwin v OHIM , C‑263/09 P, EU:C:2011:452, paragraph 50). It is true that the [OSCURATO:PERSONA] of Appeal and the EU judicature must, of their own motion, obtain information about the national law where such information is necessary to assess whether the ground for refusal of registration in question applies, which entails them taking into consideration, in addition to the facts which have been expressly put forward by the parties to the opposition proceedings, facts which are well known, that is, facts which are likely to be known by anyone or which may be learnt from generally accessible sources (see, to that effect, judgments of 27 March 2014, OHIM v [OSCURATO:PERSONA] , C‑530/12 P, EU:C:2014:186, paragraphs 39, 44 and 45, and of 28 October 2015, Маска , T‑96/13, EU:T:2015:813, paragraph 31 and the case-law cited). However, that obligation only applies in circumstances where EUIPO or the EU judicature already have before them information relating to national law, either in the form of claims as to its content, or in the form of evidence submitted and whose probative value has been claimed (see, to that effect and by analogy, judgment of 28 October 2015, Маска , T‑96/13, EU:T:2015:813, paragraph 31 and the case-law cited). 43 Therefore, in the present case, it is indeed for the applicant, in its capacity as opponent, to provide EUIPO with particulars establishing the content of the national law. 44 In addition, it is necessary to note that, to support its opposition, the applicant referred to a non-registered earlier trade mark with identical wording to the mark applied for and claimed that such earlier mark exists at least in the territory of the [OSCURATO:PERSONA]. As stated in paragraph 7 above and as follows from the seventh subparagraph of paragraph 9 of the contested decision, the only evidence relating to the use of the earlier mark that the applicant provided to the [OSCURATO:PERSONA] is a two-page document headed ‘Sales confirmation’ and dated 8 October 2013. The applicant provided no evidence of the relevant national law, which caused its opposition to be rejected by the [OSCURATO:PERSONA]. As pointed out in paragraph 12 above, it is in the statement of grounds in its action before the [OSCURATO:PERSONA] of Appeal that the applicant referred for the first time to the provisions of [OSCURATO:PERSONA] national law governing the legal protection of non-registered signs. 45 Therefore the [OSCURATO:PERSONA] must assess whether the [OSCURATO:PERSONA] of Appeal was entitled to conclude, in paragraph 70 of the contested decision, that in circumstances such as those of this case it did not have the discretion to accept evidence submitted for the first time before it regarding the protection given to the earlier mark by the relevant [OSCURATO:PERSONA] law, since the applicant had failed to provide any evidence to that effect before the [OSCURATO:PERSONA]. 46 According to settled case-law, it is clear from the wording of [OSCURATO:PERSONA] 76(2) of [OSCURATO:PERSONA] 207/2009, relating to the assessment of the facts by EUIPO of its own motion, that, as a general rule and unless otherwise specified, the submission of facts and evidence by the parties remains possible after the time limits to which such submission is subject under the provisions of [OSCURATO:PERSONA] 207/2009 and that EUIPO is in no way prohibited from taking account of facts and evidence which are invoked or produced out of time (see judgment of 11 December 2014, CEDC [OSCURATO:PERSONA] v OHIM — Underberg (Shape of a blade of grass in a bottle) , T‑235/12, EU:T:2014:1058, paragraph 44 and the case-law cited). In other words, EUIPO may take them into account after the time limit set by the [OSCURATO:PERSONA] and, as the case may be, for the first time before the [OSCURATO:PERSONA] of Appeal by applying the discretion conferred on it by [OSCURATO:PERSONA] 76(2) of [OSCURATO:PERSONA] 207/2009 (see, to that effect, judgment of 11 December 2014, Shape of a blade of grass in a bottle , T‑235/12, EU:T:2014:1058, paragraph 44 and the case-law cited). 47 It is also consistently held that, in stating that EUIPO ‘may’, in such a case, 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 information into account (see judgment of 11 December 2014, Shape of a blade of grass in a bottle , T‑235/12, EU:T:2014:1058, paragraph 45 and the case-law cited). 48 It is understood that such discretion relates only to the matter of whether or not it is necessary to accept evidence that is submitted out of time. Such discretion does not relate to the assessment of the nature of that evidence. 49 [OSCURATO:PERSONA] the third subparagraph of Rule 50(1) of [OSCURATO:PERSONA] 2868/95, where the action is directed against a decision of an [OSCURATO:PERSONA], the [OSCURATO:PERSONA] of Appeal must limit its examination of the action to facts and evidence presented within the time limits set or specified by the [OSCURATO:PERSONA], unless the [OSCURATO:PERSONA] considers that ‘additional’ or ‘supplementary’ facts and evidence must be taken into account pursuant to [OSCURATO:PERSONA] 76(2) of [OSCURATO:PERSONA] 207/2009 (see, to that effect, judgments of 3 October 2013, Rintisch v OHIM , C‑120/12 P, EU:C:2013:638, paragraph 31, and of 21 July 2016, EUIPO v [OSCURATO:PERSONA] , C‑597/14 P, EU:C:2016:579, paragraph 23). 50 In that respect, the [OSCURATO:PERSONA] of Justice initially interpreted [OSCURATO:PERSONA] 76(2) of [OSCURATO:PERSONA] 207/2009, in relation to proof of use, as follows: when no proof of genuine use of the relevant mark is submitted within the time limit set by EUIPO, the opposition must automatically be rejected by EUIPO; conversely, where evidence was produced within the time limit set by EUIPO, the submission of additional proof remains possible (see, to that effect, judgment of 18 July 2013, [OSCURATO:PERSONA] SHK Jeans v OHIM , C‑621/11 P, EU:C:2013:484, paragraphs 28 and 30). 51 Subsequently, the [OSCURATO:PERSONA] of Justice held that [OSCURATO:PERSONA] 76(2) of [OSCURATO:PERSONA] 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 relevant proceedings. [OSCURATO:PERSONA] of Justice inferred from the above that Rule 50 of [OSCURATO:PERSONA] 2868/95 cannot be interpreted as meaning that it extends the discretion of the Boards of Appeal to new evidence (judgment of 21 July 2016, EUIPO v [OSCURATO:PERSONA] , C‑597/14 P, EU:C:2016:579, paragraph 27, and the Opinion of [OSCURATO:PERSONA] in OHIM v [OSCURATO:PERSONA] , C‑597/14 P, EU:C:2016:2, points 55 and 57). 52 Taking into account the principles set out above, it is therefore necessary to assess whether the applicant had, in the context of the opposition proceedings, produced at least some evidence as to the existence, validity and scope of protection of the earlier non-registered trade mark on which it is relying. 53 Clearly, in that respect, the [OSCURATO:PERSONA] of Appeal was entitled to hold that the applicant had produced no evidence as to the content of the national law at issue within the time limit and that the applicant had also failed to submit a legitimate reason justifying its conduct. 54 The only piece of evidence submitted by the applicant for the purpose of proving the existence, validity and scope of protection of the earlier non-registered trade mark was, as is referred to in paragraphs 7 and 44 above, a two-page document headed ‘Sales confirmation’ dated 8 October 2013 and relating to a delivery of calculators from [OSCURATO:PERSONA]. 55 As EUIPO points out in its response, that document provides no information on the use of the earlier mark relied on that relates to, inter alia, the place and duration of that use, or even on the possibility of concluding that the scope of that trade mark is of more than mere local significance. Nor does that document contain information on the requisite conditions under the law of the [OSCURATO:PERSONA]. 56 It is also clear that the ‘Sales confirmation’ is a list that refers to a number of products, amongst which the earlier non-registered mark does not feature, the closest reference to it being ‘SDC‑888T+’. 57 Moreover, as the intervener submits, the ‘Sales confirmation’ does not contain any specifications relating to the specific products that it lists, and does not prove that the order to which it appears to refer led to a delivery of the relevant goods for the earlier non-registered trade mark. 58 During the hearing, in response to the [OSCURATO:PERSONA] question as to how exactly the aforementioned ‘Sales confirmation’ contained information on the requisite conditions and on the protection offered by the law of the [OSCURATO:PERSONA] regarding the earlier non-registered trade mark, the applicant gave no explanation. 59 Further, the applicant produced before the [OSCURATO:PERSONA] a document to which was attached a letter sent by the intervener to a German body, which, however, contains no detail whatsoever as to the existence, validity and scope of the protection of the earlier non-registered trade mark. 60 In such conditions, it cannot be held that the applicant had already provided, during the proceedings before the [OSCURATO:PERSONA], some evidence intended to prove the existence, validity and scope of the protection of the earlier trade mark. Therefore, the references to the provisions of [OSCURATO:PERSONA] law provided by the applicant for the first time when setting out its statement of grounds in the application before the [OSCURATO:PERSONA] of Appeal are not ‘additional’ or ‘supplementary’ evidence to that which had been submitted before the [OSCURATO:PERSONA]. 61 Consequently, the [OSCURATO:PERSONA] of Appeal did not err in law when it held that it did not have discretion to accept evidence produced for the first time before it, since such evidence was out of time. 62 In the light of the foregoing, it should be noted that, unlike the circumstances of the case giving rise to the judgment of 29 June 2016, Group v EUIPO — Iliev (GROUP Company TOURISM & TRAVEL) (T‑567/14, under appeal, EU:T:2016:371), the evidence submitted by the applicant before the [OSCURATO:PERSONA] in the current case did not allow the [OSCURATO:PERSONA] of Appeal to exercise its discretion. 63 In addition, during the hearing, the applicant made available to the [OSCURATO:PERSONA] several examples of the calculator that it claims to market and on which was inscribed the earlier non-registered trade mark. However, without having to rule on the probative value of that evidence as regards the existence, validity and scope of the protection of the earlier non-registered trade mark, it is sufficient, for the purposes of rejecting such evidence, to find that such evidence has been submitted out of time. First, as is explained in paragraphs 38 to 51 of this judgment, that evidence should have been submitted during the proceedings before the [OSCURATO:PERSONA] of EUIPO. [OSCURATO:PERSONA], in any event, under [OSCURATO:PERSONA] 85(1) of the Rules of Procedure, evidence produced or offered is to be submitted in the first exchange of pleadings. Pursuant to [OSCURATO:PERSONA] 85(3) of those rules, the main parties may, exceptionally, produce or offer further evidence before the oral part of the procedure is closed or before the [OSCURATO:PERSONA] decision to rule without an oral part of the procedure, provided that the delay in the submission of such evidence is justified. In that respect, the submission of the aforementioned evidence during the hearing occurred out of time for the purpose of those provisions. Since the applicant has not justified the submissions of such evidence out of time, it should be rejected as inadmissible, pursuant to [OSCURATO:PERSONA] 85(1) and (3) of the Rules of Procedure. 64 As regards the applicant’s argument that the [OSCURATO:PERSONA] of Appeal erred in applying the principles laid down in the judgment of 28 October 2015, Маска (T‑96/13, EU:T:2015:813), although that judgment was delivered after the deadline for the lodging of an action against the [OSCURATO:PERSONA] decision given in the present proceedings, it should be noted that, according to established case-law, the interpretation by the [OSCURATO:PERSONA] of Justice of a provision of EU law is limited to clarifying and explaining its meaning and scope, as it should have been understood and applied since its entry into force. It follows that the provision thus interpreted may, and must, be applied even to legal relationships which arose and were established before the judgment in question and it is only exceptionally, in application of a general principle of legal certainty which is inherent in the [OSCURATO:PERSONA] legal order, that the [OSCURATO:PERSONA] may decide to restrict the right to rely upon a provision, which it has interpreted, with a view to calling in question legal relationships established in good faith. Those considerations apply to the EU institutions when they, in turn, are required to implement the provisions of EU law which are subsequently interpreted by the [OSCURATO:PERSONA] (see judgment of 16 September 2013, Spain v [OSCURATO:PERSONA] , T‑402/06, EU:T:2013:445, paragraph 104 and the case-law cited). 65 For the sake of completeness, the [OSCURATO:PERSONA] of Appeal was right to hold, in paragraph 71 of the contested decision, that, even if the evidence submitted before it for the first time had to be considered to be ‘additional’ or ‘supplementary’, and even if it were necessary to find that the [OSCURATO:PERSONA] of Appeal did have discretion allowing it to accept that evidence, it would not have taken such evidence into consideration. 66 As the [OSCURATO:PERSONA] of Appeal pointed out, it is clear from the wording of [OSCURATO:PERSONA] 76(2) of [OSCURATO:PERSONA] 207/2009 that the fact that a party has invoked or produced evidence out of time does not confer on it an unconditional right to have that evidence taken into consideration by EUIPO. 67 In that regard, the [OSCURATO:PERSONA] of Justice has held that, where EUIPO is called upon to give judgment in the context of opposition proceedings, taking into account evidence produced out of time is particularly likely to be justified where EUIPO finds, first, that the evidence which has been produced late is, on the face of it, likely to be genuinely relevant to the outcome of the opposition 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 matters being taken into account (judgment of 13 March 2007, OHIM v Kaul , C‑29/05 P, EU:C:2007:162, paragraph 44). 68 First, it should be pointed out that, as EUIPO correctly maintains, the applicant in the present case had to be aware that it was obliged to produce some evidence to establish the content of [OSCURATO:PERSONA] law. 69 Such an obligation arises already from Rule 19(2)(d) of [OSCURATO:PERSONA] 2868/95, as mentioned in paragraph 42 above. In addition, it clearly follows from the content of EUIPO’s letter of 5 August 2014 that it had informed the applicant of the evidence that had to be submitted in support of an opposition based on [OSCURATO:PERSONA] 8(4) of [OSCURATO:PERSONA] 207/2009, indicating in particular the content of national law, particularly with regard to the conditions of protection of the right relied on and the scope of the holder’s rights, as well as, in respect of a non-registered trade mark, providing evidence that such trade mark was used in the course of trade. 70 Despite that specific request for information, the applicant failed to submit before the [OSCURATO:PERSONA] any evidence of the content of national law or any information whatsoever on such content. 71 [OSCURATO:PERSONA], the information provided by the applicant to justify that delay cannot be accepted. 72 Turning first to the principle iura novit curia relied upon by the applicant, such principle relates only to the application of EU law. According to established case-law, the determination and interpretation of rules of national law is a matter of establishing the facts, not applying the law. Consequently, it is only EU law which falls within the area of law, in which the maxim iura novit curia applies; national law is an issue of fact, where facts must be adduced and the requirements of the burden of proof apply, and the content of national law must be demonstrated where necessary by the production of evidence (see, to that effect, judgment of 20 March 2013, [OSCURATO:PERSONA] v OHIM — [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) , T‑571/11, EU:T:2013:145, paragraph 35 and the case-law cited). As is clear from paragraph 42 of this judgment, first, it is only in circumstances where EUIPO already has information on national law available to it that it must of its own motion inform itself of the latter, if it is necessary to do so for the purposes of assessing the conditions for the application of a ground for refusal to register. [OSCURATO:PERSONA], the [OSCURATO:PERSONA] is able to carry out an effective check on this point and verify, beyond the documents submitted to it, the wording, the conditions of application and the scope of the legal rules relied on by the applicant only if documents are submitted to it as evidence of the applicable national law and, if necessary, only by filling any gaps in those documents. 73 Thus, it is necessary to reject the applicant’s argument that EUIPO was too general when it requested the applicant to clarify its opposition. As stated in paragraph 69 above, the letter of 5 August 2014 requesting the applicant to complete its opposition contained sufficient detail as to the evidence needed to be submitted in support of its opposition. That letter clearly stated the pieces of evidence admitted in the context of an opposition based on [OSCURATO:PERSONA] 8(4) of [OSCURATO:PERSONA] 207/2009 and provided more specific and detailed information in that respect than the information contained in Rule 19(2)(d) of [OSCURATO:PERSONA] 2868/95. The applicant replied to that letter on 10 December 2014 and provided various details and pieces of information relating to the opposition, without, however, responding to the request from the [OSCURATO:PERSONA] of EUIPO for information on national law. Indeed, during the hearing, when responding to a question asked by the [OSCURATO:PERSONA] requesting that the applicant explain why it had not responded to that request of the [OSCURATO:PERSONA], the applicant did no more than to insist that EUIPO’s request was too general, without providing any argument to substantiate that assertion. 74 It follows from the foregoing that the single plea in law put forward by the applicant must be rejected and, consequently, the action must be dismissed in its entirety. Costs 75 [OSCURATO:PERSONA] 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. 76 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO and the intervener. On those grounds, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby: 1. Dismisses the action; 2. [OSCURATO:PERSONA] spol. s r. o. to pay the costs. [OSCURATO:PERSONA] Delivered in open court in Luxembourg on 12 October 2017. E. Coulon S. [OSCURATO:PERSONA] * Language of the case: English.