Official Journal of the European Union

C 142/10

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(Case C-90/08 P)

(2008/C 142/16)

Language of the case: German

Parties

Appellant(s): K & L Ruppert Stiftung & Co. Handels-KG (represented by: D. Spohn, Rechtsanwältin)

Other party/parties to the proceedings: 1. Office for Harmonisation in the Internal Market (Trade Marks and Designs), 2. Natália Cristina Lopes de Almeida Cunha, 3. Cláudia Couto Simões, 4. Marly Lima Jatobá

Form of order sought

—Annulment of the whole of paragraph 1 of the operative part of the judgment of the Court of First Instance of 12 December 2007 in Case T-86/05 and annulment of paragraph 2 of the operative part of that judgment so as to order OHIM to pay all its own costs and all the applicant's costs;

—An order that OHIM pay the costs of proceedings.

Upholding the claims made at first instance:

—Annulment of the decision of the First Board of Appeal of OHIM of 7 December 2004, R 0328/2004-1 in full;

—An order that OHIM pay the costs.

Pleas in law and main arguments

The Court of First Instance dismissed the application of the appellant against the decision of the First Board of Appeal of OHIM on the ground that the Opposition Division of the Office correctly applied the second sentence of Rule 71(1) of Regulation No 2868/95 when it refused the appellant's application for an extension of the period specified for submission of proof of use of the earlier marks in the opposition proceedings, and that the Office had no discretion as regards the consideration of the evidence submitted late by the appellant in the present case.

The appeal alleges the following breaches of Community law by the Court.

(1) The Court of First Instance has infringed the second sentence of Rule 71(1) of Regulation No 2868/95 by misinterpreting that provision. In particular, the Court of First Instance failed to have regard for the fact that Regulation No 40/94 contains no rules on possible grounds for an extension of the period specified. It also failed to have regard for the fact that, at the material time, Rule 71(1) of Regulation No 2868/95 had not been further defined by guidelines for oppositions or other instructions from OHIM, so that no possible interpretations of the permissible grounds for extensions of the period were available. The Court therefore did not consider fully the facts of the case and/or misinterpreted the second sentence of Rule 71(1).

(2) The Court of First Instance also disregarded the duty to state reasons incumbent on it, as it did not investigate the statement of the appellant that at the time of the application for an extension there were no legal rules and no basis for interpretation of the wording of requests for extensions. As reasons were attached to the request for an extension, the Court should also have explained the legal basis on which the reasons stated for the request for an extension are to be regarded as insufficient.

(3) The Court of First Instance infringed Article 74(2) of Regulation No 40/94 by misinterpreting that provision as meaning that OHIM had no discretion to take account of evidence adduced late in the opposition proceedings. It failed to have regard to the fact that the Boards of Appeal have a general discretion which is not excluded by the provisions of Article 43 of Regulation No 40/94 and the second sentence of Rule 22(2) of Regulation No 2868/95.

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