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From monkeying around to legal certainty: the CJEU speaks

05 February 2026

The Court of Justice of the European Union (CJEU) has now brought an end to the uncertainty surrounding the temporal assessment of earlier rights in EU trade mark proceedings. In its judgment, the CJEU has set aside the General Court's decision in Nowhere v EUIPO and upheld the appeal brought by the European Union Intellectual Property Office. As a result, the pre-existing approach applied by EUIPO will prevail, and the Office's established practice in opposition and invalidity proceedings will continue.

The judgment confirms that the EUIPO – together with a significant part of the trade mark practitioner community – had correctly interpreted EU law as requiring that, in opposition and invalidity proceedings, the earlier rights relied upon must continue to produce legal effects in the European Union at the time the decision is taken. The CJEU unequivocally confirmed as follows (paragraph 173):

“[the] earlier right must continue to exist until the date on which EUIPO rules on the opposition based on that right, including at the stage of the appeal before the Board of Appeal…”

On that basis, where an earlier right ceases to exist before a final decision is adopted – whether due to Brexit, revocation, surrender, or expiry – the opposition or invalidity action the opposition or invalidity action would be dismissed in so far as it was based on this right.

While the judgment will disappoint those who had hoped for a fundamental recalibration of EUIPO procedure, it provides a welcome return to legal certainty by confirming that earlier rights relied upon in inter partes proceedings must continue to exist and produce effects at the time the decision is taken.

Brief background of the case

For recollection, the Nowhere case arises from an opposition to an EU trade mark application filed in 2015 for a figurative sign shown below and covering various goods and services.

monkeying around

The opposition was based, inter alia, on an earlier unregistered trade mark right in the United Kingdom, relied upon under the law of passing off. Following a complex procedural history, the Second Board of Appeal of EUIPO adopted its decision on 10 February 2021, that is, after the end of the Brexit transition period on 31 December 2020. In line with the EUIPO's then-established practice, the Board rejected the opposition on the ground that, following the United Kingdom's withdrawal from the European Union, UK rights no longer constituted valid earlier rights capable of being relied upon against an EUTM application. This decision was however overturned by the Geneal Court in its judgment of 16 March 2022 (see here)

The CJEU’s ruling and its effect

The CJEU has now rejected that approach. By refusing to follow the General Court, it has confirmed that earlier rights relied upon in opposition and invalidity proceedings must continue to have legal effect at the time EUIPO adopts its decision. Where an earlier right has ceased to exist – whether as a result of Brexit, revocation, surrender, or territorial loss of protection – it can no longer serve as a basis for opposing or invalidating an EUTM.

In doing so, the CJEU has effectively reaffirmed earlier case law emphasising the need for a continuing interest in bringing inter partes proceedings and has restored alignment with long-standing EUIPO practice and guidance.

Practical consequences

The immediate practical impact of the judgment is one of continuity rather than disruption:

EUIPO’s existing approach to oppositions and invalidity actions is confirmed and will continue to apply.
UK rights can no longer be relied upon in EUIPO proceedings where the decision is taken after the end of the Brexit transition period.
Revocation, surrender, or expiry of earlier rights during the course of proceedings will remain relevant and may bring proceedings to an end.
Trade mark owners may continue to rely on procedural strategies that take account of changes to the legal status of earlier rights over time.

The judgment also removes the need for EUIPO to revisit past decisions or reassess its practice on suspensions, legitimate interest, or the temporal scope of reputation evidence.

By overturning the General Court's ruling in Nowhere, the CJEU has decisively closed the door on what would have been a profound shift in EU trade mark procedure. While the decision curtails the more expansive reading of filing-date relevance adopted by the General Court, it restores predictability and procedural stability for trade mark owners and practitioners alike.

In that sense, the CJEU's judgment marks a move from monkeying around to legal certainty, ensuring that EUIPO proceedings remain anchored to the continued existence and effectiveness of the rights on which they are based.

See judgment: 5 February 2026 in Case C-337/22 P EUIPO v Nowhere.

Authored by Iza Junkar and Andreas Renck