ORDER OF THE GENERAL COURT (Fourth Chamber)
16 March 2018 (*)
(EU trade mark — Opposition proceedings — Application for EU figurative mark _kix — Revocation of the contested decision — Action which has become devoid of purpose — No need to adjudicate — Articles 173(1) and (2) of the Rules of Procedure — Intervention by the other party to the proceedings before the Board of Appeal — Response lodged out of time)
In Case T‑822/16,
KiK Textilien und Non-Food GmbH, established in Bönen (Germany), represented by S. Körber and L. Pechan, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by K. Zajfert and A. Folliard-Monguiral, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
FF Group Romania SRL, established in Bucharest (Romania), represented by A. Cavescu, lawyer,
ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 6 September 2016 (Case R 2323/2015-4), relating to opposition proceedings between KiK Textilien und Non-Food and FF Group Romania,
THE GENERAL COURT (Fourth Chamber),
composed of H. Kanninen, President, L. Calvo-Sotelo Ibáñez-Martín and I. Reine (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
1 By document lodged at the Court Registry on 21 November 2016, the applicant, KiK Textilien und Non-Food, brought the present action, seeking annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 6 September 2016 (Case R 2323/2015-4), relating to opposition proceedings between the applicant and FF Group Romania (‘the contested decision’).
2 By letter lodged at the Court Registry on 14 September 2017, EUIPO informed the Court that, by decision of 18 July 2017, the Fourth Board of Appeal of EUIPO had adopted a decision (Case R 2323/2015-4 RE) by which it had revoked the contested decision (‘the decision to revoke’). The decision to revoke was based on Article 80 of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1) (now Article 103 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)).
3 In the decision to revoke, the Board of Appeal stated that the contested decision contained an obvious procedural error and should therefore be revoked in its entirety.
4 By letter lodged at the Court Registry on 14 November 2017, EUIPO informed the Court that the decision to revoke had become final. Consequently, it asked the Court to declare that the action had become devoid of purpose and that there was no longer any need to adjudicate on it, in accordance with Article 130(2) of the Rules of Procedure. EUIPO did not make any application for costs.
5 By letter lodged at the Court Registry on 28 November 2017, the applicant signalled its agreement regarding the application for a decision that there was no need to adjudicate. It requested the Court to rule on the costs.
6 In accordance with Article 130(2) and (7) of the Rules of Procedure of the General Court, it is sufficient to state in the present case that, in the light of the revocation of the contested decision, the present action has become devoid of purpose. It follows that there is no longer any need to adjudicate on the action.
7 Article 137 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.
8 In the circumstances of the present case, the Court considers that EUIPO must be ordered to bear its own costs and to pay those incurred by the applicant, including the costs relating to the proceedings before the Board of Appeal.
9 In addition, pursuant to Article 178(3) of the Rules of Procedure, the application was served on FF Group Romania by letter of the Registrar of the Court of 6 March 2017.
10 FF Group Romania became an intervener before the Court when it lodged with the Registry a procedural document on 3 January 2017. It lost its status as an intervener by failing to respond to the application in the manner and within the period prescribed. In accordance with Article 173(2) of the Rules of Procedure, FF Group Romania is to bear its own costs in relation to the procedural documents which it lodged.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby orders:
1. There is no longer any need to adjudicate on the action.
2. The European Union Intellectual Property Office (EUIPO) shall bear its own costs and pay those incurred by KiK Textilien und Non-Food GmbH.
3. FF Group Romania shall bear its own costs.
Luxembourg, 16 March 2018.