ORDER OF THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
4 April 2024 (*)
(EU trade mark – Opposition proceedings – Application for the EU word mark CLEOPATRA – Relative grounds for refusal – Intervention – Co-contractor of the applicant seeking registration of the mark – No interest in the result of the case)
In Case T‑482/23,
Afaaq Ahmad Qozgar, residing in Thiruvananthapuram (India), represented by L. Pivec, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by E. Markakis, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
L’Oréal, established in Clichy (France), represented by T. de Haan and S. Vandezande, lawyers,
THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
makes the following
Order
1 By his action based on Article 263 TFEU, the applicant, Mr Afaaq Ahmad Qozgar, seeks annulment and alteration of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 2 June 2023 (Case R 2509/2022-5) (‘the contested decision’).
Background and procedure
2 On 14 November 2012, the intervener, L’Oréal, obtained registration with EUIPO of the EU word mark CLEOPATRA in respect of, inter alia, ‘cosmetics, toilet preparations, not for medical use, soaps, bars of soap, soap (cakes of -), liquid soaps, shower gels, anti-perspirant soap, deodorant soap, disinfectant soaps’ in Class 3.
3 By application filed on 22 October 2019, the applicant sought to register the word mark CLEOPATRA in respect of ‘wax strips for removing body hair; depilatory creams; wax (depilatory -); hair removing cream; depilatory preparations; depilatories; depilatory waxes; depilatory wax’ in Class 3.
4 On 7 April 2020, the intervener filed a notice of opposition to registration of the mark applied for based on its EU word mark CLEOPATRA, relying on Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).
5 By decision of 15 November 2022, the Opposition Division rejected the trade mark application having regard to a likelihood of confusion.
6 On 16 December 2022, the applicant filed a notice of appeal with EUIPO against the decision of the Opposition Division.
7 By the contested decision, the Fifth Board of Appeal dismissed the appeal, thereby rejecting the application for registration of the mark applied for.
8 By application lodged at the Court Registry on 10 August 2023, the applicant brought the present action. The intervener filed its response on 8 November 2023, and EUIPO filed its response on 13 November 2023.
9 By document lodged at the Court Registry on 6 November 2023, the applicant for leave to intervene, Luxury Cosmetics d.o.o., applied for leave to intervene in the present case in support of the form of order sought by the applicant.
10 By documents lodged at the Court Registry on 22 and 24 November 2023, respectively, EUIPO and the intervener objected to the intervention, contending, inter alia, that the applicant for leave to intervene did not have a direct, existing interest in the result of the case.
Law
11 The applicant for leave to intervene submits that its legal representative and sole shareholder was the proprietor of the Croatian and international word marks CLEOPATRA in respect of, inter alia, depilatory preparations. It states that its legal representative transferred those the marks to it on 14 February 2022. The applicant for leave to intervene argues that the contested decision prohibits it from manufacturing and selling depilatory and hair removal preparations within the European Union, as is apparent from the agreement suspending the distribution agreement of 17 April 2020, concluded between the applicant for leave to intervene, its legal representative and shareholder, the applicant and a company of which the applicant is a shareholder, until the final decision on the opposition, which therefore led to loss of profit for them. It infers that it has a right to intervene for the purposes of Article 143(2)(f) of the Rules of Procedure of the General Court, read in conjunction with Article 40(2) of the Statute of the Court of Justice of the European Union, in order to be able to resume sales under the distribution agreement and, as a result, to exercise its right to the free movement of goods throughout the internal market. Last, it adduces additional evidence in support of the applicant’s arguments.
12 EUIPO and the intervener contend that the application for leave to intervene should be rejected.
13 Under the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court pursuant to the first paragraph of Article 53 of that statute, any person which can establish an interest in the result of a case other than a case between Member States, between institutions of the European Union or between Member States and institutions of the European Union, may intervene in that case.
14 According to settled case-law, the concept of an ‘interest in the result of a case’, within the meaning of that provision, must be defined in the light of the subject matter of the case and be understood as meaning a direct, existing interest in the ruling on the form of order sought, and not as an interest in relation to the pleas in law or arguments put forward. The words ‘result of a case’ refer to the final decision sought, as set out in the operative part of the judgment or order ending the proceedings (order of the President of the Court of Justice of 16 December 2022, EUIPO v Indo European Foods, C‑801/21 P, not published, EU:C:2022:1049, paragraph 11, and order of 18 September 2019, Glimarpol v EUIPO – Metar (Pneumatic power tools), T‑748/18, EU:T:2019:687, paragraph 14).
15 In that regard, it is necessary to ascertain, in particular, whether the applicant for leave to intervene is directly affected by the contested measure and whether its interest in the result of the case is established. In principle, an interest in the result of the case can be regarded as sufficiently direct only to the extent that that result is such as to alter the legal position of the applicant for leave to intervene (order of the President of the Court of Justice of 9 October 2018, Poland v Commission, C‑181/18 P, not published, EU:C:2018:826, paragraph 6, and order of 20 November 2019, Glaxo Group v EUIPO (Shade of the colour purple), T‑187/19, not published, EU:T:2019:810, paragraph 22).
16 Moreover, it is for the applicant for leave to intervene to adduce the evidence necessary to prove that it satisfies the conditions arising from the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union (see order of 22 February 2023, PT Indonesia Ruipu Nickel and Chrome Alloy v Commission, T‑348/22, not published, EU:T:2023:84, paragraph 11 and the case-law cited).
17 In the present case, the applicant for leave to intervene concluded a distribution agreement with, first, its sole shareholder and legal representative, second, a company of which the applicant is a shareholder and, third, the applicant himself (‘the distribution agreement’). In that connection, it is apparent from the terms of the distribution agreement that the company of which the applicant is a shareholder was referred to as a distributor of the depilatory and hair removal preparations of the applicant for leave to intervene for the EU countries not covered by the Croatian and international registrations of the word mark CLEOPATRA and that the applicant was authorised to apply, in his own name, for registration of the mark applied for. Moreover, it should be noted that the parties to the distribution agreement agreed, on 17 April 2020, to suspend that agreement following the opposition proceedings initiated by the intervener on 7 April 2020.
18 In order to establish an interest in the result of the case, the applicant for leave to intervene submits that the contested decision prohibits it from manufacturing and selling its depilatory and hair removal preparations in the EU countries referred to above, as it claims is apparent from the agreement to suspend the distribution agreement. The contested decision therefore prevents it from resuming that agreement, which leads to a loss of profit and hinders the free movement of its goods throughout the internal market.
19 However, first, as pointed out by EUIPO, the contested decision does no more than decide on the opposition in question between the applicant and the intervener, which concerns the mark applied for in respect of which the applicant for leave to intervene has not claimed any right. Moreover, in that same decision, the Board of Appeal did not issue any directions to the applicant for leave to intervene regarding the goods it markets. As a result, the possibility for the applicant for leave to intervene of manufacturing or selling a product or of using its right to free movement of goods within the internal market is not directly dependent on the Court’s decision in the present case.
20 Second, the suspension of the distribution agreement is a direct result of a contractual choice specified in the agreement concluded by the applicant for leave to intervene with, inter alia, the applicant on 17 April 2020, that is, after opposition proceedings regarding the mark applied for were brought. Even though that suspension agreement is related to the opposition proceedings and applies until a final decision on that opposition is adopted, it is no more than an indirect consequence of the contested decision. Therefore, the result of the present case does not, per se, directly affect the possibility for the applicant for leave to intervene of resuming performance of the distribution agreement and market its goods within the European Union.
21 Third, should the applicant for leave to intervene argue that there is a risk that, in the event that the present action is dismissed, the intervener could bring proceedings before the competent courts seeking a prohibition on the applicant for leave to intervene to market certain goods, such prohibition could materialise only, as the case may be, in the event of such proceedings and would therefore not result directly from the result of the present case.
22 The consequences that the future decision in the present case could have, as the case may be, on the contractual relationship or the sale of the goods of the applicant for leave to intervene are, as a result, indirect only.
23 Fourth and last, the argument of the applicant for leave to intervene relying on additional evidence which supports the applicant’s argument relates to whether the action is well founded and must therefore be rejected as ineffective for the purposes of assessing whether the applicant for leave to intervene has an interest in the result of the case, without there being any need to examine whether that evidence is admissible.
24 It follows from the foregoing that the applicant for leave to intervene has not established an interest in the result of the case within the meaning of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union. Accordingly, the application for leave to intervene must be rejected.
Costs
25 Under Article 133 of the Rules of Procedure, a decision as to costs is to be given in the judgment or order which closes the proceedings. Since the present order closes the proceedings with respect to the applicant for leave to intervene, it is appropriate to give a decision on the costs relating to its application for leave to intervene.
26 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
27 In the present case, the applicant for leave to intervene must be ordered to bear its own costs and to pay those of EUIPO relating to the present application for leave to intervene, in accordance with the form of order sought by EUIPO. The intervener is to bear its own costs relating to the present application for leave to intervene, in accordance with the form of order sought by the intervener.
On those grounds,
THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
hereby orders:
1. The application for leave to intervene by Luxury Cosmetics d.o.o. is rejected.
2. Luxury Cosmetics shall pay the costs of EUIPO relating to the intervention proceedings and shall bear its own costs.
3. L’Oréal shall bear its own costs relating to the intervention proceedings.
Luxembourg, 4 April 2024.
Registrar | | Acting President |