AG opines on EUIPO powers of revocation
Advocate general (AG) Manuel Campos Sánchez-Bordona has given his option on the ability of the European Union Intellectual Property Office (EUIPO) to revoke its own decisions on occasions when inadequate reasons were given for them.
AG Campos Sánchez-Bordona delivered his opinion to the Court of Justice of the European Union (CJEU) yesterday, May 16.
The dispute began in 2013 when repowermap.org, an association seeking to raise awareness about renewable energies, applied to invalidate EU trademark ‘Repower’ on the grounds that it is descriptive and devoid of distinctive character.
‘Repower’, owned by international energy company Repower, is registered in classes 4, 9, 37, 39, 40, and 42 to cover a range of goods and services relating to electrical energy and its production.
In 2014, the EUIPO’s Cancellation Division partially upheld the application in relation to some of the goods and services in classes 37 and 42, but dismissed the application in relation to all other goods and services.
The Fifth Board of Appeal dismissed repowermap.org’s appeal in 2016 and found that the ‘Repower’ mark is not descriptive.
Repowermap.org appealed to the EU General Court but, before the court had heard the matter, the Board of Appeal revoked its 2016 decision on the basis that it had given an inadequate statement of reasons for it.
Repower then appealed against the revocation on the grounds that an inadequate statement of reasons is an error of material law rather than a procedural error, and the EUIPO cannot revoke an error of material law unilaterally.
The energy company also claimed that the board lacked the power to revoke its own decision amid ongoing proceedings, and that to allow the board to do so is “incompatible” with principles of sound administration and legal certainty.
In 2018, the EU General Court dismissed the appeal.
The General Court agreed that an inadequate statement of reasons is an error of material law, rather than procedural error, but said that the board was entitled to rely on the “general principle of law that permits the withdrawal of an unlawful administrative act in order to withdraw their decisions”.
Repower appealed to the CJEU and, in March, Repower, repower.org, and the EUIPO presented their respective arguments at the CJEU.
Yesterday, AG Campos Sánchez-Bordona agreed with Repower that EU law provides the EUIPO with “an explicit limitation of the power of revocation”, under which the EUIPO can revoke procedural, but not substantive, errors.
However, he said that an inadequate statement of reasons constitutes a procedural error, rather than an error of material law.
“The Board of Appeal was right to classify the inadequate statement of reasons as a procedural error,” he concluded, and the General Court’s determination that it is rather a matter of material law is “legally incorrect”.
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