ORDER OF THE COURT OF FIRST INSTANCE (Fourth Chamber)
10 June 2009 (*)
(Community trade mark – Opposition – Withdrawal of the opposition – No need to adjudicate)
In Case T-159/08,
The Procter & Gamble Company, established in Cincinnati (United States), represented by K. Sandberg, lawyer,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by D. Botis, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM being
Bayer AG, established in Leverkusen (Germany),
ACTION brought against the decision of the Second Board of Appeal of OHIM of 11 February 2008 (Case R 960/2007-2), relating to opposition proceedings between Bayer AG and The Procter & Gamble Company,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fourth Chamber),
composed of O. Czúcz, President, I. Labucka, K. O’Higgins, Judges,
Registrar: E. Coulon,
makes the present
Order
1 By letter lodged at the Registry of the Court on 30 March 2009, the defendant informed the Court that, by letter of 3 February 2009, it had been informed of an agreement between the applicant and the other party to the proceedings before the Board of Appeal, pursuant to which the latter has validly withdrawn the opposition before it. The defendant further requested the Court not to order it to pay costs.
2 By letter lodged at the Registry of the Court on 20 April 2009, the applicant agreed that there is no need to adjudicate in this case as the other party to the proceedings before the Board of Appeal has withdrawn the opposition. The applicant further informed the Court that it concluded an agreement with the other party to the proceedings before the Board of Appeal according to which each party will bear its own costs.
3 Pursuant to Article 113 of the Rules of Procedure of the Court of First Instance, it suffices in the present case to hold 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 rule on the action (order in Case T‑10/01 Lichtwer Pharma v OHIM – Biofarma (Sedonium) [2003] ECR II‑2225, paragraphs 16 to 18).
4 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.
5 In the present case, the agreement that led to withdrawal of the opposition was concluded between the applicant and the other party to the proceedings before the Board of Appeal, and not between the applicant and the OHIM. Therefore the Court considers that it is appropriate to order the applicant to bear its own costs, as well as those of the OHIM.
On those grounds,
THE COURT OF FIRST INSTANCE (Fourth Chamber)
hereby orders:
1. There is no need to rule on the action.
2. The applicant shall bear its own costs, as well as those of the OHIM.
Luxembourg, 10 June 2009.