Following up on the case reported last Friday on Lambretta and "IP translator", the case T-132/12 Scooters India v OHMI was about a cancellation action for revocation for non-use of  CTM LAMBRETA for goods in Classes 6, 7 and 28, and the interpretation on the assessment of evidence before OHIM.

The applicant appealed to the GC  because the Board of Appeal examined the evidence submitted to it in isolation and not in conjunction with the evidence already provided to the Cancellation Division, inter alia the statement of Mr W., the President of the Lambretta Club of Great Britain.

In its brief to the BoA, the applicant submitted that the documents provided had been assessed in an overly harsh way, ‘given that the previous evidence was filed under an explanatory witness statement of [Mr W.]’. That submission clearly showed that the applicant continued to rely, before the BoA on the evidence previously provided and, in particular, on Mr W.’s statement.

After examining the admissibility of the new evidence submitted by the two parties before it, the Board of Appeal exclusively set out and assessed that new evidence. By contrast, it did not even mention the evidence previously submitted to the Cancellation Division. Furthermore, the Board of Appeal did not, in general terms, adopt the assessment made by the Cancellation Division.

Thus the General Court upheld the first complaint put forward by the applicant and held that the Board of Appeal infringed its obligation to carry out a global assessment which took into account all the relevant factors of the particular case. Consequently, contrary to what OHIM and Brandconcern maintained, the applicant was entitled to put forward before the Court that evidence, as well as the complaint alleging that the Board of Appeal failed to take it into account. The GC annulled the contested decision of the BoA.