As Colm adds, this seems slightly dodgy: it basically means that you can fluff a deadline in an Opposition, then reopen the evidence before the Board of Appeal.
"Basically it seems to be a procedural issue. The Spanish were late with their evidence of prior use at OHIM.
* January 2001 Rothschild applies for the mark;
* October 2001 Spanish oppose on grounds (a) risk of confusion; (b) prior use;
* 28 January 2002 the Spanish submitted some documents showing prior use, but critically only one document showing recent use — a sample of a label from 2000;
Rothschild's opposes the prior use on grounds that the Spanish had failed to show serious use;
* OHIM Oppositions gave the Spanish until September 2002 to file evidence of recent serious use;
* They filed nothing before November 2002 — OHIM threw out their case against registration;
* January 2003 they finally filed proof of serious use;
* They then appealed. The Appeal Board held, you fluffed the deadline, tough.
The Spanish then appealed to the Court of First Instance. The bottom line in the CFI's judgment was that the Board of Appeal should have allowed the new evidence because it was within its deadlines: it's supposed to take an appreciation of the entire case. Decision annulled and remanded for re-review in light of the admissible evidence".
Many thanks, Colm!