CJEU NOWHERE Decision: Monkey Business and the new “Decision‑Date” Rule for Earlier Rights in EUIPO oppositions

Summary. On 5 February 2026, the Court of Justice of the European Union confirmed in EUIPO v Nowhere C‑337/22 P that for opposition proceedings before the EUIPO: an “earlier right” cited in opposition must not only pre‑date the EU filing or priority date of the contested application; it must also still exist as a valid right on the date of EUIPO’s final decision. Although the point arose in the context of the Opponent’s common law rights in the UK post Brexit-transition date, the rationale is of general application across EU trade marks. The highest Court has now confirmed that if an earlier trade mark relied on in an opposition lapses, is revoked, is surrendered, or ceases to qualify under the law of a Member State or the EU before the EUIPO issues its decision, the opposition fails, even if the right was unimpeachable at the application date.

The facts in brief

On 30 June 2015, the applicant Mr Junguo Ye filed EU trade mark application No. 
014319578 (you may view this over here) for the figurative sign APE TEES and Monkey Device, reproduced below, covering goods and services in Classes 3, 9, 14, 18, 25 and 35. The application was published on 9 December 2015. 

On 8 March 2016, Nowhere Co. Ltd filed an opposition towards this, relying on three non‑registered monkey‑device signs used in the United Kingdom, which you can also see below. At the time the opposition was filed, unregistered rights under Passing Off in the UK constituted valid earlier rights under Article 8(4) EUTMR. 

Opposed Mark	Earlier Unregistered Marks

The Opposition Division and General Court’s approach

Initially, the EUIPO’s Opposition Division rejected the opposition on the ground that, by the time it issued its decision, the transition period had long expired and UK law was no longer “the law of a Member State”, meaning that rights under Passing Off in the UK could no longer fall within Article 8(4) and thus could not sustain the opposition at the moment the EUIPO decided the case. The Second Board of Appeal subsequently dismissed the appeal on the same basis, reasoning that, after 31 December 2020, UK‑only rights no longer constituted valid rights to be relied on in an EU opposition. 

However, subsequently, the General Court annulled that decision on 16 March 2022, holding that the relevant moment for assessing the existence of the earlier right was only the filing date of the EUTM, when the United Kingdom was still a Member State and unregistered rights under Passing Off were fully cognisable under the EUIPO opposition regime. 

The matter was then appealed again up to the Court of Justice of the European Union (“CJEU”)

What the CJEU decided, and why

The crisp issue to be decided by the CJEU was whether or not earlier rights need to be valid at the time of decision or only at the time an opposition is filed. The CJEU set aside the General Court’s decisionand reinstated the EUIPO’s initial decision. It held that Article 8(4), but in effect any earlier right including by implication an earlier registered trade mark, carries two temporal limbs: 

1. the earlier right must have been acquired prior to the EU filing/priority date of the contested application; and
2. crucially, the sign must “confer” (present tense) the right to prohibit use through to the date of the EUIPO’s final decision. 

The Court anchored its decision on the principle of territoriality and clarified that from a policy perspective an opposition aims to prevent the coexistence of two enforceable rights, a condition that becomes absent once the earlier right ceases to exist in the EU legal order. 

The CJEU dismissed Nowhere’s action and confirmed the EUIPO’s initial position.

Why this matters, beyond Brexit and passing off

At first glance, one might read the case as a textbook example of why securing a registered trade mark is strategically important. Of course, the Opponent would have been on far firmer ground had its monkey device been registered within the EU, without having to establish and rely on unregistered rights as the principle ground of opposition. But the implications of the judgment reach well beyond the Brexit‑coloured facts. The Court has effectively shifted the decisive moment for assessing the validity of earlier rights from the date of filing an opposition to the date of the decision itself. Earlier rights that are revoked, invalidated, surrendered, or otherwise extinguished during the course of the proceedings will no longer sustain the opposition, even if they were valid when the opposition proceedings commenced. 

In practice, we believe this decision will encourage more post‑registration cancellation actions, especially where earlier rights are nearly at the end of the five year non-use grace period at the time of filing an opposition. More importantly, considering the significance of this decision particularly on revocation and with EU oppositions generally taking a few years to reach decisions, it means that opponents can no longer assume “safety” simply because their client’s registration is still within the five‑year grace period when the opposition is filed.