ORDER OF THE GENERAL COURT (Sixth Chamber)
11 November 2021 (*)
(EU trade mark – Revocation of the contested decision – Action which has become devoid of purpose – No need to adjudicate)
In Case T‑136/20,
Ardex GmbH, established in Witten (Germany), represented by C. Becker, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by S. Palmero Cabezas, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Lian Chen, residing in Seseña Nuevo (Spain), represented by A. González López-Menchero and V. Valero Piña, lawyers,
ACTION brought against the decision of the Second Board of Appeal of EUIPO of 18 November 2019 (Case R 2503/2018-2), relating to opposition proceedings between Ardex and Mr Chen,
THE GENERAL COURT (Sixth Chamber),
composed of A. Marcoulli, President, J. Schwarcz (Rapporteur) and R. Norkus, Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Court Registry on 2 March 2020,
having regard to the response of the intervener lodged at the Court Registry on 15 October 2020,
makes the following
Order
1 By document lodged at the Court Registry on 2 March 2020, the applicant, Ardex GmbH, brought the present action for annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 18 November 2019 (Case R 2503/2018-2), relating to opposition proceedings between itself and the intervener, Mr Lian Chen (‘the contested decision’).
2 By document lodged at the Court Registry on 10 March 2021, EUIPO informed the Court that, by decision of 17 November 2020, the Second Board of Appeal had revoked the contested decision (‘the revocation decision’) and that, following a corrigendum of 7 December 2020, the consolidated revocation decision had been notified to the parties on 14 December 2020 and had become final. Accordingly, EUIPO requested that the Court find, in accordance with Article 130(2) of the Rules of Procedure, that, since the present action had become devoid of purpose, there was no longer any need to adjudicate on it.
3 By document lodged at the Court Registry on 25 March 2021, the applicant expressed its agreement with EUIPO’s application for a declaration that there is no need to adjudicate and requested that the latter bear the costs.
4 By document lodged at the Court Registry on 15 March 2021, the intervener expressed his agreement with the application for a declaration that there is no need to adjudicate.
5 Under Article 130(2) and (7) of the Rules of Procedure, if a party so requests, the Court may declare that the action has become devoid of purpose and that there is no longer any need to adjudicate on it. In the present case, since EUIPO has applied for a declaration that the action has become devoid of purpose and that there is no longer any need to adjudicate on it, the Court, finding that it has sufficient information from the documents in the case file, has decided to give a decision on that application, without taking further steps in the proceedings.
6 In that regard, it is sufficient to note that, in the light of the revocation decision, which has become final, the action has become devoid of purpose. It follows that there is no longer any need to adjudicate on it.
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 present case, it is apparent from the revocation decision that the contested decision was revoked on the ground that it was vitiated by a manifest error attributable to EUIPO in that the Board of Appeal had not examined certain documents submitted to it by the applicant concerning the distinctive character acquired through use of the earlier mark, on which the opposition was based. In those circumstances, the Court considers it appropriate to order EUIPO to bear its own costs and to pay those incurred by the applicant and the intervener (see, to that effect, order of 25 May 2021, Rochem Group v EUIPO – Rochem Marine (R.T.S. ROCHEM Technical Services), T‑263/20, not published, EU:T:2021:299, paragraph 9).
On those grounds,
THE GENERAL COURT (Sixth 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 Ardex GmbH and Mr Lian Chen.
Luxembourg, 11 November 2021.