ECLI:EU:T:2026:550

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JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

9 September 2026 (*)

( EU trade mark – Opposition proceedings – Application for EU figurative mark WALLAPOP – Earlier national figurative marks WALA W – Relative ground for refusal – No likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 207/2009 – Relevant point in time for assessing the existence of an earlier trade mark )

In Case T‑551/24,

Unipreus SL, established in Lérida (Spain), represented by C. Rivadulla Oliva, lawyer,

applicant,

European Union Intellectual Property Office (EUIPO), represented by D. Gája, acting as Agent,

defendant,

the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being

Wallapop, SL, established in Barcelona (Spain), represented by I. Pi Amorós, J.M. Martínez Gimeno, C. Manrique Lopez Rey, M. Pastor Delgado and L. De Sousa Amorim, lawyers,

THE GENERAL COURT (Eighth Chamber),

composed of I. Gâlea (Rapporteur), President, B. Ricziová and L. Spangsberg Grønfeldt, Judges,

Registrar: J. Čuboň, Administrator,

having regard to the written part of the procedure,

further to the hearing on 10 March 2026,

gives the following

Judgment

1 By its action under Article 263 TFEU, the applicant, Unipreus SL, seeks the annulment and the alteration of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 26 August 2024 (Case R 167/2021‑1) (‘the contested decision’).

Background to the dispute

2 On 18 September 2014, the intervener, Wallapop, SL, filed an application for registration of an EU trade mark with EUIPO in respect of the following figurative sign:

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3 The mark applied for covered services in Classes 35, 38 and 42 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended.

4 On 7 January 2015, the applicant filed a notice of opposition to registration of the mark applied for in respect of certain services in Class 35.

5 The opposition was based on the following earlier marks:

– the Spanish figurative mark, registered on 10 November 2009 under No 2 874 101 for goods in Class 35, reproduced below:

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– the Spanish figurative mark, registered on 10 August 2009 under No 2 863 963 for goods in Class 35, reproduced below:

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– the Spanish figurative mark, registered on 10 November 2009 under No 2 874 100 for goods in Class 35, reproduced below:

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6 The ground relied on in support of the opposition was that referred to in Article 8(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1).

7 On 19 October 2015, the Opposition Division upheld the opposition in part on the basis of the first earlier mark referred to in paragraph 5 above.

8 Both parties filed an appeal against the decision of the Opposition Division, with the applicant’s appeal bearing number R 2350/2015‑5 and the intervener’s appeal number R 2530/2015‑5.

9 By decision of 18 January 2017, the Fifth Board of Appeal upheld the intervener’s appeal in part and dismissed the applicant’s appeal.

10 On 23 March 2017, the applicant brought an action before the General Court seeking annulment of the decision of the Fifth Board of Appeal, in so far as the latter dismissed its appeal and its opposition to registration of the mark applied for. Accordingly, that decision, in so far as it relates to the intervener’s appeal, has become final.

11 By judgment of 3 October 2018, Unipreus v EUIPO – Wallapop (wallapop) (T‑186/17, not published, EU:T:2018:640), the General Court annulled the decision of the Fifth Board of Appeal in part, holding, in paragraph 54 of that judgment, that ‘the services at issue [were] similar to at least a low degree and that the [Fifth] Board of Appeal [had] erred in finding that those services [were] dissimilar’. The General Court therefore, first, in point 1 of the operative part of that judgment, ‘annul[led] the decision of the Fifth Board of Appeal of EUIPO of 18 January 2017, in so far as it [had] concluded that the services at issue in Case R 2350/2015‑5 were dissimilar’, and, secondly, in point 2 of that operative part, ‘dismiss[ed] the action as to the remainder’.

12 On 5 December 2018, the intervener brought an appeal before the Court of Justice against the judgment of 3 October 2018, wallapop (T‑186/17, not published, EU:T:2018:640). On 31 August 2020, the intervener withdrew its appeal on the ground that the registrations of the earlier marks on which the opposition was based had expired during the appeal proceedings, since they had not been renewed by the applicant. By order of 13 November 2020, Wallapop v EUIPO (C‑763/18 P, not published, EU:C:2020:998), the Court of Justice removed the case from the register.

13 By notification of 3 February 2021, the case was remitted to the Fourth Board of Appeal.

14 On 30 March 2021, the applicant informed EUIPO that it had filed, on 25 March 2021, appeals with the Oficina Española de Patentes y Marcas (Spanish Patent and Trade Mark Office; ‘the OEPM’), on the ground that the registrations of the earlier marks had expired due to an error on the part of the OEPM. It therefore requested the latter to restore its rights (restitutio ad integrum). Furthermore, it requested EUIPO to stay the proceedings before the Fourth Board of Appeal until the administrative and, if necessary, judicial proceedings brought before the OEPM had been closed.

15 By interim decision of 20 April 2021, the Fourth Board of Appeal stayed the proceedings pending a final decision on the expiry of the registrations of the earlier marks. On 3 January 2022, the case was reallocated to the First Board of Appeal (‘the Board of Appeal’), in accordance with Decision 2021‑17 of 2 December 2021 of the Presidium of the Boards of Appeal on the calendar year scheme for 2022, in so far as it concerns the organisation of the Boards of Appeal.

16 On 10 April 2024, the intervener informed the Board of Appeal, with supporting evidence, of the fact that the competent judicial authorities had declared the registrations of the three earlier trade marks to have definitively expired.

17 By the contested decision, the Board of Appeal dismissed the appeal and the opposition. First, it took into account the additional documents produced before it, which were intended to demonstrate the invalidity of the earlier trade marks. Next, it noted that the opposing party was required to prove the existence, validity and scope of protection of its earlier marks within the prescribed period. In that regard, it stated that, according to case-law, the earlier mark on which the opposition was based had to be valid not only at the time of publication of the application for registration of the mark applied for, but also at the time of the Board of Appeal’s decision. It found that, by national judicial decisions of 25 October 2023 and 7 March 2024, which had become final, the registrations of the earlier marks had been declared to have expired. Consequently, the Board of Appeal concluded that the opposition had become devoid of purpose, since the earlier marks had lost their validity in the course of the proceedings.

Forms of order sought

18 The applicant claims that the Court should:

– annul the contested decision;

– in essence, alter the contested decision by adopting a decision consistent with the judgment of 3 October 2018, wallapop (T‑186/17, not published, EU:T:2018:640);

– order EUIPO and the intervener to pay the costs.

19 EUIPO contends that the Court should:

– dismiss the action;

– order the applicant to pay the costs in the event that an oral hearing is convened.

20 The intervener contends that the Court should:

– declare the action inadmissible or, if necessary, dismiss it;

– order the applicant to pay the costs.

Law

The applicable substantive law

21 Given the date on which the application for registration at issue was filed, namely 18 September 2014, which is decisive for the purpose of identifying the applicable substantive law, the facts of the case are governed by the substantive provisions of Regulation No 207/2009 (see, to that effect, judgments of 8 May 2014, Bimbo v OHIM, C‑591/12 P, EU:C:2014:305, paragraph 12, and of 18 June 2020, Primart v EUIPO, C‑702/18 P, EU:C:2020:489, paragraph 2 and the case-law cited).

22 Furthermore, since, according to settled case-law, procedural rules are generally held to apply on the date on which they enter into force (see judgment of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 45 and the case-law cited), the dispute is governed by the procedural provisions of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).

23 Consequently, in the present case, as regards the substantive rules, the references made by the Board of Appeal in the contested decision and by the parties in their written pleadings to Articles 8 and 62 of Regulation 2017/1001 should be understood as referring respectively to Articles 8 and 55 of Regulation No 207/2009, the wording of which is identical.

Admissibility of the action

24 Without formally raising an objection of inadmissibility, under Article 130(1) of the Rules of Procedure of the General Court, the intervener submits that the action is inadmissible on the ground that the applicant’s heads of claim fail to comply with the principle venire contra factum proprium. It maintains that the applicant, first, requested the Board of Appeal to stay the opposition proceedings until a final decision had been given on the existence of the marks relied on in support of the opposition and, secondly, now claims, in a contradictory manner, that the outcome of those proceedings is irrelevant for the purpose of ruling on the opposition.

25 At the hearing, the applicant disputed those arguments. It stated that it had indeed requested that the proceedings before EUIPO be stayed because, at that time, the judgment of 3 October 2018, wallapop (T‑186/17, not published, EU:T:2018:640), had not become final, since the intervener had brought an appeal against that judgment before the Court of Justice. The definitive nature of that judgment, acquired on the date on which the appeal was removed from the register, is a fundamental factor. It was only after the judgment of 3 October 2018, wallapop (T‑186/17, not published, EU:T:2018:640), became final that the applicant repeatedly requested EUIPO to comply with that judgment. Accordingly, it disputes the claim that it contradicted itself and states that, in any event, any error on its part would not have been detrimental to the intervener’s rights.

26 It should be recalled that, by virtue of the judge-made principle nemo potest venire contra factum proprium, also known as venire contra factum proprium non valet, a person may not dispute what he or she has previously accepted (see judgment of 25 September 2018, Grendene v EUIPO – Hipanema (HIPANEMA), T‑435/17, not published, EU:T:2018:596, paragraph 33 and the case-law cited; see also, to the effect, order of 13 February 2014, Marszałkowski v OHIM, C‑177/13 P, not published, EU:C:2014:183, paragraphs 73 and 74).

27 In the present case, the judgment of 3 October 2018, wallapop (T‑186/17, not published, EU:T:2018:640), became final following the order of 13 November 2020, Wallapop v EUIPO (C‑763/18 P, not published, EU:C:2020:998), which removed the appeal brought by the intervener against that judgment from the register (see paragraph 12 above). In that regard, it is apparent from the documents before the Court that the applicant requested that the proceedings before EUIPO be stayed on 10 December 2020, that is to say, after the date on which the judgment of 3 October 2018, wallapop (T‑186/17, not published, EU:T:2018:640), became final, and that it reiterated that request at a later date.

28 As stated in paragraph 15 above, on 20 April 2021, the Fourth Board of Appeal decided to stay the proceedings until a decision had been taken on the validity of the earlier marks.

29 However, it should also be noted that the applicant requested EUIPO to comply with the judgment of 3 October 2018, wallapop (T‑186/17, not published, EU:T:2018:640), as soon as it lodged its request for a stay of proceedings on 10 December 2020, should EUIPO decide to continue the proceedings. Subsequently and before the proceedings were resumed, the applicant requested three times that those proceedings be resumed and that the judgment of 3 October 2018, wallapop (T‑186/17, not published, EU:T:2018:640), be complied with.

30 In the light of those facts, it must be held that the applicant does not make any contradictory claims, given that it requested, during the proceedings before EUIPO following the judgment of 3 October 2018, wallapop (T‑186/17, not published, EU:T:2018:640), either that those proceedings be stayed pending the outcome of the national appeals with regard to its earlier marks, or to comply with that judgment, leaving it to EUIPO to choose between those two options.

31 Consequently, the principle venire contra factum proprium cannot apply in the present case and the plea of inadmissibility raised by the intervener on that basis must therefore be rejected.

Substance

32 The applicant puts forward two pleas in law, alleging, first, infringement of Article 121 of the Rules of Procedure and failure to comply with the principle of legal certainty and, secondly, infringement of Article 62 of Regulation 2017/1001. It complains, in essence, that the Board of Appeal failed to fulfil its obligation to comply with the judgment of 3 October 2018, wallapop (T‑186/17, not published, EU:T:2018:640), by failing to take account of the operative part of that judgment, and that it misinterpreted the effects of the revocation of the earlier marks.

The first plea, alleging infringement of Article 121 of the Rules of Procedure and failure to comply with the principle of legal certainty

33 The applicant submits that EUIPO infringed Article 121 of the Rules of Procedure in that it disregarded the binding nature of the judgment of 3 October 2018, wallapop (T‑186/17, not published, EU:T:2018:640), by ruling to the contrary on the basis of subsequent grounds unrelated to that judgment and which were entirely ‘causal’.

34 The applicant submits that the judgment of 3 October 2018, wallapop (T‑186/17, not published, EU:T:2018:640), by which the Court definitively concluded that the services at issue were similar, excludes the peaceful coexistence of the signs at issue. It also submits that that judgment was not complied with by the body to which it was addressed, which constitutes a failure to comply with the principle of legal certainty. It accepts that the situation caused by the revocation of the earlier marks is unusual, but considers that such a situation cannot justify failure to comply with that judgment. In its view, EUIPO is required to annul the contested decision and to adopt a new decision that complies with the criteria laid down in that judgment, that is to say, one that rejects the registration of the mark applied for in respect of services similar to those covered by the earlier marks.

35 EUIPO and the intervener dispute the applicant’s arguments.

36 Article 121 of the Rules of Procedure, entitled ‘Binding nature of judgments and orders’, provides in paragraph 1:

‘1. … a judgment shall be binding from the date of its delivery.’

37 It should also be borne in mind that, under Article 71(3) of Regulation 2017/1001, the decisions of the Board of Appeal are to take effect only as from the date of expiry of the period referred to in Article 72(5) of that regulation or, if an action has been brought before the General Court within that period, as from the date of dismissal of such action or of any appeal filed with the Court of Justice against the decision of the General Court.

38 Lastly, Article 72(6) of Regulation 2017/1001 states that EUIPO is to take the necessary measures to comply with the judgment of the General Court or, in the event of an appeal against that judgment, the Court of Justice.

39 According to case-law, a judgment annulling a measure takes effect ex tunc and thus has the effect of retroactively eliminating the annulled measure from the legal system (see judgment of 25 March 2009, Kaul v OHIM – Bayer (ARCOL), T‑402/07, EU:T:2009:85, paragraph 21 and the case-law cited). According to the same case-law, in order to comply with a judgment annulling a measure and to implement it fully, the institution that is the author of the measure is required to have regard not only to the operative part of the judgment but also to the grounds constituting its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure (judgments of 25 March 2009, ARCOL, T‑402/07, EU:T:2009:85, paragraph 22, and of 13 April 2011, Safariland v OHIM – DEF-TEC Defense Technology (FIRST DEFENSE AEROSOL PEPPER PROJECTOR), T‑262/09, EU:T:2011:171, paragraph 41).

40 In the present case, as has been recalled in paragraphs 9 to 12 above, the decision of the Fifth Board of Appeal was annulled by the judgment of 3 October 2018, wallapop (T‑186/17, not published, EU:T:2018:640), which became final following the removal from the register of the appeal brought against that judgment by the order of 13 November 2020, Wallapop v EUIPO (C‑763/18 P, not published, EU:C:2020:998). Consequently, in accordance with the case-law cited in paragraph 39 above, the action brought by the applicant before the Board of Appeal again became pending and it was for the Board of Appeal to adopt a new decision in order to comply with its obligation under Article 72(6) of Regulation 2017/1001 to take the necessary measures to comply with the judgment of 3 October 2018, wallapop (T‑186/17, not published, EU:T:2018:640).

41 The applicant thus criticises the Board of Appeal for failing to adopt a decision that complied with the grounds of the judgment of 3 October 2018, wallapop (T‑186/17, not published, EU:T:2018:640). It submits that the Board of Appeal should have found that there was a likelihood of confusion and, consequently, refused registration of the mark applied for in respect of services similar to those covered by the earlier marks.

42 In the first place, it should be noted that the Fifth Board of Appeal dismissed the applicant’s appeal, finding that there was no likelihood of confusion on the ground that the services covered by the mark applied for were dissimilar to the services covered by the first earlier mark.

43 In that regard, the Court, in paragraphs 16 and 17 of the judgment of 3 October 2018, wallapop (T‑186/17, not published, EU:T:2018:640), found that the Fifth Board of Appeal had based its reasoning on the absence of one of the two cumulative conditions required for a finding of a likelihood of confusion, namely the absence of any similarity between the services at issue. Thus, the Court held that it was not for it to alter that decision, as regards the overall assessment of the likelihood of confusion, since no such assessment had been made by the Board of Appeal in respect of the services at issue. Furthermore, in paragraph 54 of that judgment, the Court found that the services at issue were, at the very least, similar to a low degree and that the Board of Appeal had erred in finding that those services were dissimilar. Accordingly, on that ground and to that extent, the Court annulled the decision of the Fifth Board of Appeal.

44 Contrary to what the applicant claims, the similarity of the services at issue does not in itself mean that there is a likelihood of confusion. A likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 22 January 2009, Commercy v OHIM – easyGroup IP Licensing (easyHotel), T‑316/07, EU:T:2009:14, paragraph 42 and the case-law cited). Therefore, after finding that there was an error vitiating one of those cumulative conditions, the Court did not rule on the existence of a likelihood of confusion, since that assessment must first be carried out by EUIPO.

45 In the second place, the Board of Appeal found, in paragraphs 26 and 27 of the contested decision, that the opposition had become devoid of purpose, given that, by national judicial decisions of 25 October 2023 and 7 March 2024, which had become final, the registrations of the earlier marks had been declared to have expired.

46 In that regard, it is apparent from case-law that the Opposition Division and the Board of Appeal must take account of changes in circumstances that occur between the filing of the opposition and the decision ruling on the opposition and that, in order to ascertain whether the earlier trade mark’s function of identifying origin may be invalidated as a result of it co-existing in time with the mark applied for, with which it is liable to be confused, EUIPO must be aware of the earlier mark’s term of protection (judgment of 13 September 2006, MIP Metro v OHIM – Tesco Stores (METRO), T‑191/04, EU:T:2006:254, paragraphs 34 and 38).

47 It is, moreover, for that reason and in the interests of the sound administration of justice that the Fourth Board of Appeal decided, in response to the applicant’s requests, to stay the proceedings pending a decision on the validity of the earlier marks.

48 Therefore, as observed by EUIPO, it must be held that the expiry of the registrations of the earlier marks on which the opposition was based constitutes a new fact subsequent to the delivery of the judgment of 3 October 2018, wallapop (T‑186/17, not published, EU:T:2018:640). Since the Board of Appeal was required to adopt a new decision by carrying out a new assessment of the law and facts of the dispute, it was required to take that new fact into consideration.

49 In the third place, as regards the question whether the expiry of the registrations of the earlier marks constituted a new fact capable of affecting the meaning of the decision to be taken by the Board of Appeal, it should be noted that the Board of Appeal relied, in paragraph 25 of the contested decision, on the consideration that the earlier mark relied on in support of the opposition must be valid not only at the time of publication of the application for registration of the mark applied for, but also at the time of the Board of Appeal’s decision.

50 In that regard, in its judgment of 5 February 2026, EUIPO v Nowhere (C‑337/22 P, EU:C:2026:71, paragraphs 107, 112 and 120), the Court of Justice held, with regard to an opposition based on Article 8(4) of Regulation No 207/2009, that the existence of a relative ground for refusal relied on in support of an opposition to the registration of an EU trade mark must be assessed not only on the date of filing of the application for that registration, but also on the date on which EUIPO gives a final decision on the opposition.

51 In the present case, it is necessary to examine whether the consideration set out in paragraph 50 above also applies to an opposition based on Article 8(1)(b) of Regulation No 207/2009, as is the case here.

52 First, it should be noted that, under Article 8(1)(b) of Regulation No 207/2009, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for is not to be registered ‘if because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected’ and that ‘the likelihood of confusion includes the likelihood of association with the earlier trade mark’. Furthermore, under Article 8(2) of that regulation, ‘earlier trade marks’ means, inter alia, trade marks registered in a Member State or in the European Union and trade marks registered under international arrangements which have effect in a Member State or in the European Union with a date of application for registration which is earlier than the date of application for registration of the EU trade mark.

53 In that regard, it should be noted that the conditions for the application of Article 8(1)(b) of Regulation No 207/2009 are drafted in the present tense. Similarly, the words ‘the trade mark applied for shall not be registered’, which refer to EUIPO’s decision upholding the opposition and rejecting the application for registration of an EU trade mark, are also drafted in the present tense (judgment of 5 February 2026, EUIPO v Nowhere, C‑337/22 P, EU:C:2026:71, paragraph 106). Furthermore, Article 8(2) of that regulation expressly relates to a temporal criterion whereby the acquisition of rights to the sign relied on in support of the opposition predates the date of filing of the application for the EU trade mark concerned or, where appropriate, the date of the priority claimed in respect of that application.

54 It follows from the wording of Article 8(1)(b) and (2) of Regulation No 207/2009, as regards oppositions based on earlier registered marks to which that provision is applicable, that, although the date of filing of the application for registration of an EU trade mark is relevant for the purpose of assessing whether those earlier registered marks predate that filing, the existence of those marks until the date on which a decision is given on the opposition is required in order for that opposition to be upheld. Thus, while Article 8(2) of that regulation defines ‘earlier trade marks’, for the purposes of Article 8(1) of that regulation, as referring, inter alia, to ‘trade marks … with a date of application for registration which is earlier than the date of application for registration of the [EU] trade mark, taking into account, where appropriate, the priorities claimed in respect of those trade marks’, Article 8(1)(b) of that regulation provides that, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for is not to be registered if the conditions set out in the latter provision are fulfilled, namely where there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected because of the identity of the trade mark applied for with, or its similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks (see, to that effect and by analogy, judgment of 5 February 2026, EUIPO v Nowhere, C‑337/22 P, EU:C:2026:71, paragraph 109).

55 Secondly, that interpretation is supported by the context of which Article 8(1)(b) of Regulation No 207/2009 forms part.

56 The Court of Justice has held that, like the wording of paragraphs 1 and 2 of Article 8 of Regulation No 207/2009, that of Article 8(4) of that regulation, the structure of which is similar, suggests that, admittedly, the acquisition of the earlier right relied on in support of an opposition based on that provision must be assessed in the light of the date of filing of the application for registration of the EU trade mark concerned or, as the case may be, the priority date. However, it also follows that it is necessary, in order for that opposition to be upheld, that that earlier right confer on its proprietor the ‘right to prohibit the use of a subsequent trade mark’ under the legislation of a Member State or that of the European Union, not only on that date, but also at the later date on which that opposition was filed and until the date on which a decision is taken as to whether ‘the trade mark applied for shall not be registered’ (judgment of 5 February 2026, EUIPO v Nowhere, C‑337/22 P, EU:C:2026:71, paragraphs 107 and 109).

57 The Court of Justice has also held, with regard to Article 8(4) of Regulation No 207/2009, that the question whether there is still a validly protected earlier right must be assessed on the date on which EUIPO gave a final decision on the opposition in order to decide whether ‘the trade mark applied for [was not] registered’, including at the stage of the appeal before the Board of Appeal. That is a preliminary issue that EUIPO must resolve before ascertaining whether the opposing party has proved that that earlier right also satisfied the substantive conditions laid down in Article 8(4) of Regulation No 207/2009, and in particular that it conferred on its proprietor the right to prohibit the use of a subsequent trade mark (judgment of 5 February 2026, EUIPO v Nowhere, C‑337/22 P, EU:C:2026:71, paragraph 112).

58 Thirdly, the interpretation set out in paragraph 54 above is also borne out by the objectives of the opposition proceedings.

59 In that regard, it should be noted that the anteriority criteria laid down in Article 8(2) of Regulation No 207/2009, as regards earlier registered trade marks, implement the principle of priority, referred to in recital 12 of Regulation 2017/1001 (see, to that effect, judgment of 5 February 2026, EUIPO v Nowhere, C‑337/22 P, EU:C:2026:71, paragraph 114).

60 In accordance with the principle of priority, the exclusive right conferred by Regulation No 207/2009 and Regulation 2017/1001 on the proprietor of the EU trade mark belongs to the person who first registered or acquired the mark concerned. Therefore, as is apparent from Article 46 of Regulation No 207/2009, it is the date of filing of the application for registration relating to that mark or, as the case may be, the date of the priority claimed for that application that is decisive. In the event of a conflict between two trade marks, the mark acquired or registered first is presumed to have satisfied the conditions required for protection before the EU trade mark registered second (see judgment of 5 February 2026, EUIPO v Nowhere, C‑337/22 P, EU:C:2026:71, paragraph 115 and the case-law cited).

61 From that point of view, opposition proceedings, which are among the mechanisms for prior review available in the context of the procedure for registration of EU trade marks, serve the purpose of preventing the registration of EU trade marks liable to conflict with other marks by enabling the proprietor of an earlier mark to prevent a sign that is liable to infringe that mark from being registered, without prejudice to the right of that proprietor, under Regulation No 207/2009, to bring infringement proceedings on account of the use of a subsequent mark or an application for a declaration of invalidity in respect of that mark, once it has been registered (see judgment of 5 February 2026, EUIPO v Nowhere, C‑337/22 P, EU:C:2026:71, paragraph 116 and the case-law cited).

62 Furthermore, the general objective of Regulation No 207/2009 is to strike a balance between, on the one hand, the interests of the proprietor of a trade mark in preserving the essential function of that mark, which is to guarantee the identity of the origin of the goods or services for which it is registered for the consumer or end user by enabling him or her, without any possibility of confusion, to distinguish those goods or services from others which have another origin, and, on the other hand, the interests of other economic operators in having signs capable of designating their goods and services (see judgment of 5 February 2026, EUIPO v Nowhere, C‑337/22 P, EU:C:2026:71, paragraph 117 and the case-law cited).

63 Therefore, the interpretation according to which EUIPO is not required to take into account the fact that an earlier mark has ceased to be protected in the relevant territory on a date subsequent to that of the filing of the application for registration of the EU trade mark, and before EUIPO rules on the opposition, necessarily means that EUIPO may be required to refuse registration of an EU trade mark on account of a potential conflict with an earlier mark, even though, on the date of that refusal, the latter mark is no longer protected in that territory by the legislation or treaty provisions applicable to it (see, to that effect, judgment of 5 February 2026, EUIPO v Nowhere, C‑337/22 P, EU:C:2026:71, paragraph 120).

64 However, in a situation in which the earlier mark no longer enjoys such protection, the essential function of that mark 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. Therefore, the interpretation that the earlier mark is not required to be still valid on the date on which the decision ruling on the opposition is taken is contrary to the general objective of that regulation of balancing the interests of the proprietor of an earlier mark and those of third parties in having signs capable of designating their goods and services (see, to that effect, judgment of 5 February 2026, EUIPO v Nowhere, C‑337/22 P, EU:C:2026:71, paragraph 121).

65 In the light of those considerations, it must be held that the premiss that the existence of a relative ground for refusal relied on in support of an opposition must be assessed at the date of filing of the application for registration of the EU trade mark, and the fact that the earlier mark losing, after that date, the status of a registered or protected trade mark does not affect the outcome of the opposition, has no basis either in the wording and context of Article 8(1) and (2) of Regulation No 207/2009 or, more generally, in the objectives of opposition proceedings (see, to that effect and by analogy, judgment of 5 February 2026, EUIPO v Nowhere, C‑337/22 P, EU:C:2026:71, paragraphs 101 and 102).

66 Consequently, the Board of Appeal correctly found that the earlier marks on which the opposition was based had to be valid not only at the time of publication of the application for registration of the mark applied for, but also at the date of its decision and that, on that basis, it took into account the national judicial decisions of 25 October 2023 and 7 March 2024 definitively declaring that the registrations of the earlier marks had expired, in order to conclude that the opposition had become devoid of purpose due to the loss of validity of those marks in the course of the proceedings.

67 It should be noted, as observed by EUIPO at the hearing, that the fact that the judgment of 5 February 2026, EUIPO v Nowhere (C‑337/22 P, EU:C:2026:71), relates to the loss of protection of the earlier mark as a result of the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union has no bearing on the application of the solution reached in that judgment to the present case.

68 In that regard, the Court of Justice stated, in paragraph 140 of the judgment of 5 February 2026, EUIPO v Nowhere (C‑337/22 P, EU:C:2026:71), that the question whether it was relevant, for the purpose of examining an opposition, that the earlier right had ceased to enjoy the protection conferred on it by EU law, by reason of a circumstance beyond the control of its proprietor, such as the United Kingdom’s withdrawal from the European Union, as opposed to the non-renewal of an earlier mark as in the present case, was not decisive, since, in any event, in such a case, the essential function of that earlier right could no longer be jeopardised by the registration of the mark applied for.

69 It follows from all of the foregoing that the Board of Appeal was entitled to take into account the new fact relating to the validity of the earlier marks without failing to comply with the principle of legal certainty. Furthermore, contrary to what the applicant claims, namely that the taking into account of that fact disregards the grounds of the judgment of 3 October 2018, wallapop (T‑186/17, not published, EU:T:2018:640), which is res judicata, it must be held that that new fact post-dates that judgment, with the result that its being taken into account does not fail to have regard to either the status of res judicata of that judgment or, for the reasons set out above, the principle of legal certainty.

70 It follows that the first plea in law must be rejected as unfounded.

The second plea, alleging infringement of Article 55 of Regulation No 207/2009

71 The applicant submits, on the basis of Article 55(1) and (3)(a) of Regulation No 207/2009, first, that the revocation of a mark is deemed to have effect as from the date of the application for revocation or of the counterclaim and, secondly, that revocation, in so far as the date of revocation is subsequent to the delivery of the judgment of 3 October 2018, wallapop (T‑186/17, not published, EU:T:2018:640), cannot affect the operative part of that judgment.

72 In that regard, the applicant submits that, before the Court of Justice, as is apparent from paragraph 11 of the order of 13 November 2020, Wallapop v EUIPO (C‑763/18 P, not published, EU:C:2020:998), EUIPO had argued that the revocation of the earlier marks had produced effects ex nunc on 30 October 2019 and 3 February 2020 respectively, with the result that that revocation did not affect the legality of either the first decision of the Board of Appeal or the judgment of 3 October 2018, wallapop (T‑186/17, not published, EU:T:2018:640). However, in the contested decision, EUIPO maintains the contrary by stating that it cannot uphold the applicant’s claims on account of the revocation of the marks of which it is the proprietor and on which the opposition is based. In the applicant’s view, such contradictory positions at two distinct stages in the proceedings stem from a misinterpretation of the concept of revocation and lead to legal uncertainty.

73 EUIPO and the intervener dispute the applicant’s arguments.

74 Article 55 of Regulation No 207/2009, entitled ‘Consequences of revocation and invalidity’, provides:

‘1. The [EU] trade mark shall be deemed not to have had, as from the date of the application for revocation or of the counterclaim, the effects specified in this Regulation, to the extent that the rights of the proprietor have been revoked. An earlier date, on which one of the grounds for revocation occurred, may be fixed in the decision at the request of one of the parties.

…

3. Subject to the national provisions relating either to claims for compensation for damage caused by negligence or lack of good faith on the part of the proprietor of the trade mark, or to unjust enrichment, the retroactive effect of revocation or invalidity of the trade mark shall not affect:

(a) any decision on infringement which has acquired the authority of a final decision and been enforced prior to the revocation or invalidity decision;

(b) any contract concluded prior to the revocation or invalidity decision, in so far as it has been performed before that decision; however, repayment, to an extent justified by the circumstances, of sums paid under the relevant contract may be claimed on grounds of equity.’

75 In the present case, it must be held that the earlier marks on which the applicant relies are national trade marks. Therefore, the applicant cannot usefully rely, with regard to those marks, on Article 55 of Regulation No 207/2009, which, as the title of that regulation indicates, applies only to EU trade marks.

76 Furthermore, as regards the applicant’s argument that the revocation of the earlier marks cannot affect the operative part of the judgment of 3 October 2018, wallapop (T‑186/17, not published, EU:T:2018:640), it should be noted, first, that it is common ground between the parties that the OEPM declared the earlier marks to be revoked on 30 October 2019 and 3 February 2020, on account of the applicant’s failure to renew the rights. It is also common ground that that revocation occurred after the judgment of 3 October 2018, wallapop (T‑186/17, not published, EU:T:2018:640), that it has effect ex nunc, without retroactive effect, and that it was confirmed by national judicial decisions of 25 October 2023 and 7 March 2024.

77 Secondly, contrary to what the applicant claims and as is apparent from paragraph 40 above, the annulment of the decision of the Fifth Board of Appeal by the judgment of 3 October 2018, wallapop (T‑186/17, not published, EU:T:2018:640), without the Court having altered that decision, had the effect, in so far as the annulment ordered, of referring the applicant’s action back to the Board of Appeal and requiring the Board of Appeal to adopt a new decision in order to rule on that action in the light of the judgment of 3 October 2018, wallapop (T‑186/17, not published, EU:T:2018:640).

78 In that regard, it follows from the case-law cited in paragraph 46 above that the Board of Appeal must take into account the changes in circumstances between the filing of the opposition and its decision. As is apparent from paragraphs 66 and 69 above, the Board of Appeal was required to take into account, in addition to the considerations in the judgment of 3 October 2018, wallapop (T‑186/17, not published, EU:T:2018:640), new circumstances such as the revocation of the earlier marks during the proceedings, given that the validity of those marks at the time of the adoption of the decision had a decisive impact on the meaning of its decision.

79 It follows that the second plea in law must also be rejected.

80 In the light of all the foregoing considerations, since none of the pleas in law relied on by the applicant in support of the form of order sought by it can be upheld, the action must be dismissed in its entirety.

Costs

81 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

82 Since a hearing has taken place and the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO and the intervener.

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby:

1. Dismisses the action;

2. Orders Unipreus SL to pay the costs.

Gâlea

Ricziová

Spangsberg Grønfeldt

Delivered in open court in Luxembourg on 9 September 2026.

[Signatures]

* Language of the case: Spanish.

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