ORDER OF THE COURT OF FIRST INSTANCE (Third Chamber)
24 January 2007(*)
(Community trade mark – Opposition proceedings – No need to adjudicate )
In Case T‑124/06,
MIP Metro Group Intellectual Property GmbH & Co. KG, established in Düsseldorf (Germany), represented by R. Kaase, lawyer,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by A. Folliard-Monguiral, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM being
MetroRED Telecom Group Ltd, established in Hamilton (Bermuda),
ACTION brought against the decision of the Second Board of Appeal of OHIM of 16 February 2006 (Case R 266/2005‑2), relating to opposition proceedings between MIP Metro Group Intellectual Property GmbH & Co. KG and MetroRED Telecom Group Ltd,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),
composed of M. Jaeger, President, V. Tiili and O. Czúcz, Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Registry of the Court of First Instance on 27 April 2006,
having regard to the response lodged at the Court Registry on 29 June 2006,
makes the following
Order
1 By letter lodged at the Registry of the Court of First Instance on 14 August 2006, the applicant informed the Court that, in parallel opposition proceedings brought against the registration of Community trade mark No 2189512 ‘MetroRED’, also at issue in the present action (‘the mark applied for’), the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) had allowed the opposition by decision of 16 February 2006 (R 511/2005-2) and had wholly refused registration of the mark applied for. The applicant asks the Court of First Instance to ascertain whether Decision R 511/2005-2 has become definitive, in which case there is no need to adjudicate on the present action. It has not applied for costs.
2 By letter lodged at the Registry on 7 September 2006, OHIM stated that it had no observations to submit on the request not to proceed to judgment. It did not apply for costs.
3 The Court notes that, in response to a question from the Court, OHIM confirmed that Decision R 511/2005-2 had been notified to the parties in question in these proceedings, including MetroRED Telecom Group Ltd, on 28 February 2006 and that, to date, no action challenging that decision has been brought before the Court of First Instance.
4 It follows that, pursuant to Article 62(3) and Article 63(5) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended, Decision R 511/2005-2 has become definitive.
5 Accordingly, since the mark applied for is not to be registered it is sufficient, pursuant to Article 113 of the Rules of Procedure of the Court of First Instance, to declare that the present action has become devoid of purpose. It follows that there is no need to adjudicate thereon.
6 Article 87(6) of the Rules of Procedure provides that, where a case does not proceed to judgment, the costs are to be in the discretion of the Court of First Instance.
7 In the circumstances of the present case, the Court finds that it is appropriate to order each party to bear its own costs.
On those grounds,
THE COURT OF FIRST INSTANCE (Third Chamber)
hereby orders:
1. There is no need to adjudicate on the action.
2. Each party shall bear its own costs.
Luxembourg, 24 January 2007.