ORDER OF THE PRESIDENT OF THE COURT
12 January 2018 (*)
(Appeal — Intervention — Interest in the result of the case)
In Joined Cases C‑84/17 P, C‑85/17 P and C‑95/17 P,
THREE APPEALS under Article 56 of the Statute of the Court of Justice of the European Union, brought on 15 February 2017 for the first and second appeals and on 22 February 2017 for the third appeal,
Société des produits Nestlé SA, established in Vevey (Switzerland), represented by G.S.P. Vos, advocaat,
appellant,
the other parties to the proceedings being:
Mondelez UK Holdings & Services Ltd, formerly Cadbury Holdings Ltd, established in Uxbridge (United Kingdom), represented by T. Mitcheson QC, P. Walsh and J. Blum, Solicitors, and by J. Heald, Barrister,
applicant at first instance,
European Union Intellectual Property Office (EUIPO), represented by A. Folliard-Monguiral, acting as Agent,
defendant at first instance (C‑84/17 P),
Mondelez UK Holdings & Services Ltd, formerly Cadbury Holdings Ltd, established in Uxbridge, represented by T. Mitcheson QC, P. Walsh, J. Blum, and C. MacLeod, Solicitors,
appellant,
the other parties to the proceedings being:
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
Société des produits Nestlé SA,
intervener at first instance (C‑85/17 P),
European Union Intellectual Property Office (EUIPO),
appellant,
the other parties to the proceedings being:
Mondelez UK Holdings & Services Ltd, formerly Cadbury Holdings Ltd, established in Uxbridge,
applicant at first instance,
Société des produits Nestlé SA,
intervener at first instance (C‑95/17 P),
THE PRESIDENT OF THE COURT,
after hearing the Judge-Rapporteur, M. Vilaras, and the Advocate General, M. Wathelet,
makes the following
Order
1 By their appeals, registered as Cases C‑84/17 P, C‑85/17 P and C‑95/17 P respectively, Société des produits Nestlé SA (‘Nestlé’), Mondelez UK Holdings & Services Ltd, formerly Cadbury Holdings Ltd, and the European Union Intellectual Property Office (EUIPO) seek the annulment of the judgment of the General Court of the European Union of 15 December 2016, Mondelez UK Holdings & Services v EUIPO — Société des produits Nestlé (Shape of a chocolate bar) (T‑112/13, not published, EU:T:2016:735), by which it annulled the decision of the Second Board of Appeal of EUIPO of 11 December 2012 (Case R 513/2011-2), relating to cancellation proceedings between Cadbury Holdings Ltd and Nestlé.
2 By decision of 10 May 2017, the President of the Court decided to join Cases C‑84/17 P, C‑85/17 P and C‑95/17 P for the purposes of the written procedure, the oral procedure and the judgment.
3 By document lodged at the Court Registry on 13 November 2017, the European Association of Trade Mark Owners (Marques) established in Leicester (United Kingdom) applied, on the basis of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, for leave to intervene in Case C‑84/17 P in support of the form of order sought by Nestlé, appellant in that case.
4 EUIPO, Nestlé and Mondelez UK Holdings & Services submitted their written observations on that application, on 1 December 2017, 16 November 2017 and 5 December 2017 respectively. They did not raise any objections to the granting of that application.
The application to intervene
5 Under the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, any person establishing an interest in the result of a case submitted to the Court, other than a case between Member States, between institutions of the European Union or between those States and such institutions, may intervene in that case.
6 In particular, the Court allows intervention by representative associations whose object is to protect the interests of their members in cases raising questions of principle liable to affect those members (see, in particular, order of the President of the Court of Justice of 25 March 2014, Voss of Norway v OHIM, C‑445/13 P, not published, EU:C:2014:202, paragraph 7 and the case-law cited).
7 In that regard, in the first place, the application to intervene and the annexes to that application lodged by Marques state that Marques is a non-profit association, accredited before EUIPO, which is an appointed observer at the EUIPO Administrative Board and Budget Committee, and which is also an observer at the World Intellectual Property Organisation (WIPO). Moreover, it has a total of 729 member companies or firms from over 80 countries worldwide, including 27 of the 28 Member States, and many of those members are proprietors of well-known trade marks in a wide range of industries. Marques can therefore be regarded as a representative association within the meaning of the case-law in paragraph 6 of this order.
8 In the second place, those documents show that Marques’ objects include, inter alia, the protection of the interests of its members in the use made of their trade marks.
9 It must be observed, in the third place, that the question of law raised, in essence, in Case C‑84/17 P, concerns the proof of acquisition, by a sign for which registration as an EU trade mark is sought, of a distinctive character through use and, more specifically, whether such proof must be adduced for each of the Member States in which that sign is devoid of inherent distinctive character. It is therefore a question of principle liable to affect the interests of the members of Marques as proprietors of EU trade marks.
10 In those circumstances, it is appropriate to consider that Marques satisfies the criteria in the case-law cited in paragraph 6 of this order and can therefore establish an interest in the result of the case in Case C‑84/17 P.
11 As Marques’ application to intervene was submitted after the expiry of the period referred to in Article 190(2) of the Rules of Procedure of the Court, applicable to appeals, and before the decision to open the oral part of the procedure, it follows that, in accordance with the first paragraph of Article 40 of the Statute of the Court of Justice of the European Union and Article 129(4) of the Rules of Procedure, applicable to the appeal procedure under Article 190(1) of those rules, in the event that the President authorises Marques’ intervention, it may submit its observations only during the hearing, if it takes place.
12 It should also be borne in mind that, pursuant to Article 129(3) of the Rules of Procedure, the intervener must accept the case as he finds it at the time of his intervention.
13 Inasmuch as, under Article 129(4) of the Rules of Procedure, the President may take into consideration an application to intervene submitted after the expiry of the period referred to in Article 190(2) of the Rules of Procedure and before the decision to open the oral part of the procedure, there is no reason not to take into consideration Marques’ application in the present case, having regard, inter alia, to the state of the proceedings, and to Marques’ interest in the result of the case, noted in paragraph 10 of this order.
14 In those circumstances, it is appropriate to grant Marques leave to intervene in Joined Cases C‑84/17 P, C‑85/17 P and C‑95/17 P in support of the form of order sought by Nestlé in Case C‑84/17 P, in accordance with the application it submitted within the framework of that latter case, with a view to submitting its observations during the hearing, if it takes place.
Costs
15 Pursuant to Article 137(1) of the Rules of Procedure, applicable to the appeal proceedings under Article 184(1) of those Rules, a decision as to costs is to be given in the judgment or order which closes the proceedings.
16 In the present case, as Marques’ application to intervene is granted, the costs relating to its intervention must be reserved.
On those grounds, the President of the Court hereby orders:
1. The European Association of Trade Mark Owners (Marques) is granted leave to intervene in Joined Cases C‑84/17 P, C‑85/17 P and C‑95/17 P in support of the form of order sought by Nestlé in Case C‑84/17 P.
2. Marques may submit its observations during the hearing, if it takes place.
3. The costs are reserved.
Luxembourg, 12 January 2018.
A. Calot Escobar | | K. Lenaerts |