New decision of the General Court of the European Union in terms of burden of proof in opposition proceedings

The EU General Court in its decision of 9 February 2011 (T-222/09), issued in the proceedings between Ineos Healthcare Ltd, the OHIM and Teva Pharmaceutical Industries Ltd (the latter acting as the other party to the proceedings), has ruled on burden of proof in an opposition proceedings against the registration of a trademark. In particular, the Court referred to Rule 15 (3) (b) of the EC Regulation No 2868/95 of 13 December 1995, implementing EC Regulation 40/94 on the Community trademark (now Regulation 207/2009) which provides that the notice of opposition may contain a reasoned statement setting out the main facts and arguments on which the opposition relies and evidences to support the opposition. The latters do not necessarily cover all aspects of the comparison of the products. Furthermore, Rule 19 (1) of the said Regulation states that the OHIM gives the opposing party the opportunity to present the facts, evidence or arguments in support of its opposition or to complete any facts, evidence or arguments that have already been submitted in accordance with the Rule 15 (3). In light of the above provisions, the Court held that, in opposition proceedings, the opposing party has the opportunity, and not the obligation, to provide evidence to support the opposition, in particular regarding the similarity of the products and services concerned.

03/10/2011 | Trade Mark