«(Community trade mark – Regulation (EC) No 40/94 and Regulation (EC) No 2868/95 – Opposition procedure – Genuine use of earlier mark – Scope of the examination conducted by the Board of Appeal – Assessment of the evidence produced in the procedure before the Opposition Division)»

Community trade mark – Appeal procedure – Appeal against a decision of the Opposition Division – Examination by the Board of Appeal – Scope (Council Regulation No 40/94, Arts 61(1) and 62(1)) In appeal proceedings before the Boards of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) brought with a view to overturning a decision of the Opposition Division, the extent of the examination which the Board of Appeal must conduct is not, in principle, determined by the grounds relied on by the party who has brought the appeal, given the continuity, in terms of their functions, between the departments of the Office deciding on the application at first instance and the Boards of Appeal. Accordingly, even if the party who has brought the appeal has not raised a specific ground of appeal, the Board of Appeal is none the less bound to examine whether or not, in the light of all the relevant matters of fact and of law, a new decision with the same operative part as the decision under appeal may be lawfully adopted at the time of the appeal ruling.see paras 25, 29

JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber) 23 September 2003 (1)

((Community trade mark – Regulation (EC) No 40/94 and Regulation (EC) No 2868/95 – Opposition procedure – Genuine use of earlier mark – Scope of the examination conducted by the Board of Appeal – Assessment of the evidence produced in the procedure before the Opposition Division))

In Case T-308/01,

applicant,

v

defendant, the other party to the proceedings before the Office for Harmonisation in the Internal Market (Trade Marks and Designs) being: LHS (UK) Ltd,established in Cheadle Hulme (United Kingdom),

APPEAL against the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 September 2001 (Case R-738/2000-3) concerning opposition proceedings between Henkel KGaA and LHS (UK) Ltd,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Second Chamber),

composed of: N.J. Forwood, President, J. Pirrung and A.W.H. Meij, Judges,

Registrar: D. Christensen, Administrator,

having regard to the written procedure and further to the hearing on 15 January 2003,

gives the following

...

...

...

...

...

...

...(c) a statement identifying the decision which is contested and the extent to which amendment or cancellation of the decision is requested....

Arguments of the parties

Findings of the Court

On those grounds,

THE COURT OF FIRST INSTANCE (Second Chamber)

hereby:

Forwood

Pirrung

Meij

Delivered in open court in Luxembourg on 23 September 2003.

H. Jung

N.J. Forwood

Registrar

President