ORDER OF THE PRESIDENT OF THE SEVENTH CHAMBER OF THE GENERAL COURT
9 October 2023 (*)
(Community design – Judicial proceedings – Replacement of a party to the proceedings – Transfer of the rights of the owner of a Community design)
In Case T‑63/23,
SunPower Corp., established in San Jose, California (United States), represented by U. Lüken and J. Bärenfänger, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by J. Hamel and J. Ivanauskas, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
ZO,
APPLICATION under Article 263 TFEU against the decisions of the Third Board of Appeal of EUIPO of 9 December 2022 (Case R 1589/2021-3) relating to invalidity proceedings between ZO and SunPower Corp.,
THE PRESIDENT OF THE SEVENTH CHAMBER OF THE GENERAL COURT
makes the following
Order
1 On 11 November 2019, ZO filed with the European Union Intellectual Property Office (EUIPO) an application for a declaration of invalidity of the Community design registered following an application filed on 17 April 2015, with a claimed priority date of 20 October 2014, which is represented in the following views:
2 The product to which the design, in respect of which a declaration of invalidity was sought, is intended to be applied was in Class 23-03 of the Locarno Agreement of 8 October 1968 establishing an International Classification for Industrial Designs, as amended, and corresponded to the following description: ‘Solar panels (part of)’.
3 The ground relied on in support of the application for a declaration of invalidity was that set out in Article 25(1)(b) of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1), read, inter alia, in conjunction with Article 6 of that regulation.
4 The application for a declaration of invalidity was based, inter alia, on the earlier design, registered under number 2032581-0005 and represented in the following views:
5 On 16 July 2021, the Invalidity Division upheld the application for a declaration of invalidity.
6 On 16 September 2021, the applicant, SunPower Corp., lodged an appeal with EUIPO against the Invalidity Division’s decision.
7 By the contested decision, the Board of Appeal dismissed the appeal against the Invalidity Division’s decision.
8 By application lodged at the Registry of the General Court on 10 February 2023, the applicant brought an action against the decision of the Board of Appeal.
9 By letter lodged at the Court Registry on 21 August 2023, the applicant’s representative, providing proof of an authority to act given by Maxeon Solar Pte. Ltd., stated that the latter was now the holder of the contested design and that it wished to replace the applicant. The representative, inter alia, produced the notification, dated 15 May 2023, of the registration with EUIPO of the transfer of that design to Maxeon Solar.
10 On 23August 2023, the Court invited the parties to the proceedings to submit their observations on that application for replacement pursuant to Article 176(2) of the Rules of Procedure of the General Court.
11 By letter of 28 August 2023, EUIPO stated that it had no objections to that application for replacement.
12 Article 176(3) of the Rules of Procedure provides that a decision on the application for replacement is to take the form of a reasoned order of the President or is to be included in the decision closing the proceedings.
13 In accordance with Article 174 of the Rules of Procedure, where an intellectual property right affected by the proceedings has been transferred to a third party by a party to the proceedings before the Board of Appeal of EUIPO, the successor to that right may apply to replace the original party in the proceedings before the General Court. Article 176(5) of the Rules of Procedure specifies that, if the application for replacement is granted, the successor to the party who is replaced must accept the case as he or she finds it at the time of that replacement. He or she shall be bound by the procedural documents lodged by the party whom he or she replaces.
14 In the present case, the representative of the applicant, the former proprietor of the contested design, informed the Court of the transfer of that design to Maxeon Solar and she requested, as the latter’s representative, that the applicant be replaced in the present proceedings by Maxeon Solar. As stated in paragraph 9 above, that representative also produced before the Court a notification of registration with EUIPO of the transfer to that company of that design.
15 In those circumstances, since EUIPO has been heard and has not opposed the application for replacement, Maxeon Solar must be authorised to replace the applicant as applicant in the present case.
On those grounds,
THE PRESIDENT OF THE SEVENTH CHAMBER OF THE GENERAL COURT
hereby orders:
1. Maxeon Solar Pte. Ltd. is authorised to replace SunPower Corp. as applicant.
2. The costs are reserved.
Luxembourg, 9 October 2023.
V. Di Bucci | | K. Kowalik-Bańczyk |