CJEU clarifies the “relevant moment” in EUIPO oppositions: the earlier right must exist at the date of the decision

SÉRVULO PUBLICATIONS 13 Feb 2026

Analysis of the judgment EUIPO v Nowhere (C-337/22 P, 5 February 2026)

Background

The Court of Justice of the European Union (CJEU) decided, on 5 February 2026, that, in inter partes proceedings before the EUIPO — oppositions and invalidity actions — the earlier right invoked must subsist and produce effects until the date on which the EUIPO issues its decision (including at the appeal stage before the Board of Appeal). The solution departs from the approach centred on the moment of filing the opposition and restores the EUIPO’s historic administrative practice, reversing the General Court’s understanding.

The case — known as APE TEES/Nowhere — arose from an opposition based on unregistered rights in the United Kingdom (passing off). With the end of the Brexit transition period (31.12.2020), those rights ceased to qualify as “earlier rights” relevant for the purposes of the EUTMR, a situation that already applied before the Board of Appeal’s decision (10.02.2021). The CJEU confirmed that the determining temporal parameter is the date of the decision, and not only the date of the opposition.

What was decided

• Rule of subsistence until the decision: the earlier right invoked must exist and produce effects at the moment the EUIPO decides; if it ceases beforehand (through revocation, non-use cancellation, non-renewal, surrender, expiry, or by ceasing to be a right of a Member State), it cannot support the opposition/invalidity.
• General scope: the rule applies to oppositions and invalidities and is not limited to Brexit scenarios; it covers any loss of effect occurring during the process.

Relevance and practical implications:

The decision harmonises practice and offers legal certainty regarding the “relevant moment” for assessing the rights invoked before the EUIPO. In practice, it imposes governance discipline over trademark portfolios and active management of the procedural calendar: holders relying on rights susceptible to lapse or expiry during the proceedings face a real risk of failure. Professional literature highlights immediate impacts on opposition strategy (selection and combination of earlier rights), procedural timing and proof of use.

For opponents — holders of earlier rights — it is therefore recommended to:

• Keep the right “alive” until the decision: plan renewals and proof of use with a horizon of 18–36 months (or however long the process realistically lasts);
• Diversify the basis when possible (EUTM + national rights + design), mitigating the risk of a right falling during the procedure;
• Manage timing: accelerate when the basis is robust; avoid extensions when there is a risk of lapse/expiry.

For applicants — in defence of the application — it is recommended to:

• Monitor the vitality of the invoked earlier right (renewals, parallel litigation, use); if the right threatens to “fall” before the decision, the natural passage of time may become tactically favourable;
• Post-Brexit scenario: it is confirmed that rights exclusively from the United Kingdom do not support opposition before the EUIPO if they lose their connection to EU law before the decision.

The judgment EUIPO v Nowhere (C-337/22 P) marks a point of interpretative stability in the EU, shifting the focus back to the effective subsistence of rights throughout the entire procedure. For holders, applicants and investors, the message is unequivocal: active governance of assets and calibration of procedural timing will increasingly determine the success of brand enforcement strategies.

Mariana Costa Pinto | mcp@servulo.com