ORDER OF THE GENERAL COURT (Third Chamber)
24 May 2011 (1)
(Community trade mark – Opposition – Withdrawal of the opposition – No need to adjudicate)
In Case T-309/09,
Sanyō Denki Kabushiki Kaisha, established in Osaka (Japan), represented initially by M. De Zorti, M. Koch, T. Grimm, lawyers, and subsequently by V. Schmitz-Fohrmann, lawyer
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by M. Ahlgren, and subsequently by M. Ahlgren and J. F. Crespo Carillo, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court, being
Telefónica O2 Germany GmbH & Co. OHG, established in Munich (Germany), represented by A. Fottner and M. Müller, lawyers
ACTION brought against the decision of the Second Board of Appeal of OHIM of 6 May 2009 (Case R 794/2008-2), concerning opposition proceedings between Telefónica O2 Germany GmbH & Co. OHG and Sanyō Denki Kabushiki Kaisha
THE GENERAL COURT (Third Chamber),
composed of O. Czúcz, President, I. Labucka (Rapporteur), D. Gratsias, Judges
Registrar: E. Coulon,
makes the following
Order
1 By letter lodged at the Registry of the Court on 21 April 2011, the applicant informed the Court of an agreement between itself and the intervener as a result of which the intervener was withdrawing its opposition to the application for registration of the contested trade mark and stated that, in its view, there was no longer any need to adjudicate on the present action. It did not seek an order as to costs.
2 By letter lodged at the Registry of the Court on 4 May 2011, the defendant signified its agreement to the request for an order that there was no need to adjudicate. The defendant requests that the applicant is ordered to bear the costs.
3 By letter lodged at the Registry of the Court on 5 May 2011, the intervener signified its agreement to the request for an order that there was no need to adjudicate. It did not seek an order as to costs.
4 Pursuant to Article 113 of the Rules of Procedure of the Court, it suffices in the present case to find that, in the light of the withdrawal of the opposition for registration, the present action has become devoid of purpose. There is therefore no longer any need to adjudicate on it (order in Case T‑10/01 Lichtwer Pharma v OHIM – Biofarma (Sedonium) [2003] ECR II‑2225, paragraphs 16 to 18).
5 Article 87(6) of the Rules of Procedure provides that, where a case does not proceed to judgment, the costs are in the discretion of the Court.
6 In the circumstances of the case, it must be pointed out that the decision not to proceed to judgment is the result of an amicable settlement between the applicant and the intervener rather than of an agreement between the applicant and the defendant. Accordingly, the applicant and the intervener must be ordered to bear their own costs and to pay the costs incurred by the defendant.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby orders:
1. There is no need to adjudicate on the action.
2. The applicant and the intervener shall bear their own costs and those incurred by the defendant.
Luxembourg, 24 May 2011.