|''Must delve into Neapolitan |
law ...", says Tolomeo
Both the General Court (Case T-404/10) and the CJEU ruled to the opposite effect and stated that, although Rule 37 of the CTMR Implementing Regulation imposes on the claimant for invalidity the burden of providing
“particulars showing that he satisfies the necessary conditions ... in order to be able to have the use of a Community trade mark prohibited by virtue of an earlier right"under national law and "also particulars establishing the content of that law", OHIM bodies and Courts have a duty to conduct a full review of the national law particulars submitted by parties, obtaining information about the national law of the Member State concerned on their own motion for the purposes of assessing the accuracy of the facts adduced or the probative value of the documents submitted. The CJEU however set aside the General Court's ruling as the latter was based on an Italian Supreme Court’s decision [on the exciting topic of the probative value of post office stamps under Italian law] which the General Court found all by itself, but failing to give the parties a chance to address this ruling during the proceedings and thus infringing their right to be heard.
Following on from the CJEU’s ruling it appears that an intermediate solution has its attractions: national law and case law can be freely investigated by the courts, but the parties should have the right to discuss the outcome of such searches during the proceedings, in compliance with their right to be heard. As a matter of principle, the General Court stated that the reason why national law and case law should not be considered as mere fact relies on their easy accessibility: it would take not more than half an hour for even an inexpert Italian trainee to find out that the claimants’ interpretation of Italian probative regime in the NLC case is as fake as NLC thinks the 1986 assignment agreement was, so why limit the opportunities for reputable judges to dig into national provisions in order to avoid ridiculous statements on national laws such as those heard by the Cancellation Division and Board of Appeal?