ORDER OF THE GENERAL COURT (Fifth Chamber)
27 February 2012(*)
(Community trade mark – Opposition proceedings – Expiry of the earlier national mark – Action devoid of purpose – No need to adjudicate)
In Case T‑183/11,
MIP Metro Group Intellectual Property GmbH & Co. KG, established in Düsseldorf (Germany), represented by J.-C. Plate and R. Kaase, lawyers,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by P. Geroulakos, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM being
Manuel Jacinto, Lda, established in S. Paio de Oleiros (Portugal),
ACTION brought against the decision of the First Board of Appeal of OHIM of 20 January 2011 (Case R 494/2010-1), relating to opposition proceedings between Manuel Jacinto, Lda, and MIP Metro Group Intellectual Property GmbH & Co. KG,
THE GENERAL COURT (Fifth Chamber),
composed of S. Papasavvas, President, V. Vadapalas and K. O’Higgins (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
1 By letter lodged at the Registry of the General Court on 28 October 2011, the applicant informed the Court that the Portuguese Trade Mark Office had, by a decision delivered on 21 September 2011, declared that the rights of Manuel Jacinto, Lda, in respect of Portuguese trade mark No 384674, which formed the basis for the opposition before the Board of Appeal, had lapsed.
2 In reply to a written question put by the Court, OHIM and the applicant essentially stated, by letters lodged at the Registry of the Court on 12 and 14 December 2011 respectively, that the present action had become devoid of purpose and that the conditions for a declaration that there is no need to adjudicate were satisfied in this case, subject, however, to the decision of the Portuguese Trade Mark Office becoming definitive. Manuel Jacinto, Lda, did not submit any observations.
3 By letter lodged at the Registry of the Court on 16 January 2012, the applicant lodged evidence that the decision of the Portuguese Trade Mark Office referred to in paragraph 1 above had become definitive and indicated that, in its view, there was no longer any need to adjudicate on the present action.
4 By letter lodged at the Registry of the Court on 19 January 2012, the defendant expressed its agreement with the application for a declaration that there is no need to adjudicate and requested that the applicant be ordered to pay the costs.
5 In accordance with Article 113 of the Rules of Procedure of the General Court, it is sufficient in the present case to hold that, in view of the expiration of the mark on which the opposition had been founded before the Board of Appeal, the present action has become devoid of purpose. It follows that there is no longer any need to adjudicate on it (see, by way of analogy, order in Case T‑10/01 Lichtwer Pharma v OHIM – Biofarma (Sedonium) [2003] ECR II‑2225, paragraph 16).
6 Article 87(6) of the Rules of Procedure of the General Court provides that, where a case does not proceed to judgment, the costs are to be in the discretion of the Court.
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 GENERAL COURT (Fifth Chamber)
hereby orders:
1. There is no longer any need to adjudicate on the action.
2. Each party shall bear its own costs.
Luxembourg, 27 February 2012.