ORDER OF THE GENERAL COURT (Eighth Chamber)
4 October 2011 (*)
(Community trade mark – Court procedure – Replacement of one party to the proceedings – Transfer of the rights of the applicant)
In Case T-369/10,
Handicare Holding BV, established in Helmond (The Netherlands), represented by G.S.C.M. van Roeyen, lawyer,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by D. Botis, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court, being
Apple Corps Ltd, established in London (United Kingdom), represented by A. Terry and C.F.J. Stewart, Solicitors
ACTION brought against the decision of the Second Board of Appeal of OHIM of 31 May 2010 (Case R 1276/2009-2), concerning opposition proceedings between Apple Corps Ltd and Handicare Holding BV,
THE GENERAL COURT (Eighth Chamber),
composed of L. Truchot, President, M.E. Martins Ribeiro (Rapporteur) and H. Kanninen, Judges,
Registrar: E. Coulon,
makes the following
Order
1 On 27 January 2004, the applicant, Handicare Holding BV, formerly Movingpeople.net International BV, filed an application for registration of a Community trade mark at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) under Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)).
2 On 6 May 2005, the intervener, Apple Corps Ltd, filed a notice of opposition under Article 42 of Regulation No 40/94 (now Article 41 of Regulation No 207/2009) to registration of the mark applied for. By decision of 25 August 2009, the Opposition Division of OHIM rejected the opposition. By decision of 31 May 2010 (‘the contested decision’), the Second Board of Appeal of OHIM annulled the decision of the Opposition Division.
3 By application lodged at the Registry of the General Court on 2 September 2010, the applicant brought an action against the contested decision. Apple Corps Ltd lodged its response on 14 December 2010. OHIM lodged its response on 21 December 2010.
4 By letter of 1 September 2011, the applicant and You-Q BV informed the General Court of the assignment to You-Q BV of the Community trade mark application against which the opposition before OHIM was directed. They requested that You-Q BV be authorised to replace Handicare Holding BV as the applicant in the present proceedings.
5 The parties to the proceedings were invited to submit observations on the replacement of the applicant.
6 By letter of 16 September 2011, OHIM stated that according to the evidence submitted by the applicant, You-Q BV has become the rightful owner of the Community trade mark application and has also become, as of right, party to the administrative proceedings.
7 By letter of 16 September 2011, Apple Corps Ltd stated that it had no objections to that replacement.
8 Under Article 65(4) of Council Regulation (EC) No 207/2009, an action under Article 65 thereof is to be open to any party before the Board of Appeal adversely affected by its decision.
9 Neither the Statute of the Court of Justice nor the Rules of Procedure of the General Court contain any provisions expressly governing the situation in which a party to the proceedings before the Board of Appeal transfers the intellectual property right affected by the proceedings after the decision of the Board of Appeal. In particular, there is no provision for the possibility, for the new owner of the right, to replace the transferor for the purposes of the proceedings before the General Court (order in Case T-94/02 Hugo Boss v OHIM – Delta Biomichania Pagatou (BOSS) [2004] ECR II-813, paragraph 15).
10 The General Court has nevertheless accepted that the person claiming under the former owner, a party before the Board of Appeal, may replace that party for the purposes of the proceedings before the General Court. Such replacement, according to the Court, does not occur automatically as a result of the registration with a competent authority of the individual transfer of an intellectual property right at issue but needs to be allowed by an order of the General Court under the condition that all parties to the proceedings have been heard (order in BOSS, paragraphs 20, 24, 25 and 27).
11 In the present case, Handicare Holding BV, the former owner of the mark at issue and the original applicant in these proceedings, and You-Q BV, the new owner of the mark at issue following an assignment of rights, have stated that they agree on the replacement. OHIM agreed to the replacement. Apple Corps Ltd has not raised any objections. In those circumstances, it is appropriate to allow You-Q BV to replace Handicare Holding BV as the applicant.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby orders:
1) You-Q BV is admitted as the applicant in place of Handicare Holding BV.
2) The costs are reserved.
Luxembourg, 4 October 2011.