The present dispute arises from the filing of a European Union trade mark application on 30 June 2015, consisting of the representation of a monkey. Following the publication of the application, the company Nowhere filed an opposition on 8 March 2016 against all the goods and services applied for.The opposition was based on three earlier unregistered trade marks consisting of a graphic representation of a monkey, which had been used in the course of trade in the United Kingdom.

During the administrative proceedings, the agreement on the United Kingdom’s withdrawal from the European Union came into force, with the transition period ending on 31 December 2020.In light of these developments, the EUIPO Board of Appeal dismissed Nowhere’s appeal, as any rights that may have existed in the United Kingdom were no longer grounds for opposition proceedings in the European Union. Consequently, the opposing party could no longer invoke an action for passing off under UK law.

Nowhere appealed against the EUIPO’s decision before the General Court, on the basis that the date on which an opposition was filed was the relevant date for determining the prior right on which the opposition was based. However, the EUIPO considered that such a right must still exist at the time of the final decision on the opposition.

After considering the arguments of both parties, the General Court annulled the EUIPO’s decision since all acts in the administrative procedure, except for the Board of Appeal’s decision, took place before the Withdrawal Agreement came into force and, in any case, before the end of the transition period.

The EUIPO appealed against the General Court’s judgment before the Court of Justice of the European Union, arguing that the disappearance of the earlier right during the proceedings before the EUIPO necessarily entails dismissal of the corresponding opposition. The Office criticised the General Court for establishing a general rule according to which events relating to an earlier trademark that occur after the date of filing of the contested application are irrelevant to the outcome of the opposition.Nowhere, however, considers that the United Kingdom’s withdrawal from the European Union does not affect the protection of its earlier rights, since the relevant date for examining the opposition is the date of filing of the contested trademark application, At that time, the United Kingdom was still a Member State of the European Union.

The Court of Justice of the European Union upheld the EUIPO’s appeal and overturned the General Court’s judgment. Although the acquisition of the earlier right invoked in support of an opposition must be assessed in relation to the date on which the contested EU trade mark application was filed, in order for the opposition to be upheld, the earlier right must confer on its proprietor the ‘right to prohibit the use of a later trade mark’ after the opposition is filed and until a decision is made on the applied-for mark. When the earlier mark no longer enjoys such protection, its essential function can no longer be compromised by the registration of the EU trade mark since such an earlier mark is no longer capable of fulfilling that essential function. Moreover, there can be no conflict between earlier marks protected in the United Kingdom and an EU trade mark in the event that the latter is registered after the date of expiry of the transition period, given that the latter mark will, in that case, have effect in a territory other than that in which those earlier trade marks are protected.

Judgment of the Court of Justice (Fifth Chamber) of 5 February 2026 in Case C 337/22 P