OHIM has published revised guidelines on the acceptance of evidence of trade mark use filed by an opponent after the prescribed deadline. The guidelines have been effective since 2 June 2014 and reflect guidance from recent CJEU case law.
As a result of the new guidelines, OHIM will no longer reject all late filed evidence but will instead accept late supplementary evidence if some relevant initial evidence was provided before the deadline.
Additional evidence may be accepted if the following two conditions apply:
- additional evidence merely strengthens and clarifies the prior relevant evidence submitted within the deadline; and
- the opponent does not abuse the time-limits set by employing delaying tactics or by demonstrating manifest negligence.
Late supplementary evidence is particularly likely to be taken into account where the evidence appears likely to be relevant to the outcome, and where the stage of the proceedings at which the late submission takes place and its surrounding circumstances do not preclude the evidence being taken into account.