ORDER OF THE GENERAL COURT (Ninth Chamber)
18 May 2018 (*)
(EU trade mark — Application for EU word mark VELUX — Claiming the seniority of the earlier national word mark VELUX — Revocation of the decision of the Board of Appeal — Article 103 of Regulation (EU) 2017/1001 — Action which has become devoid of purpose — No need to adjudicate)
In Case T‑465/17,
VKR Holding A/S, established in Søborg (Denmark), represented by J. Heebøll, lawyer,
European Union Intellectual Property Office (EUIPO), represented by D. Gája, acting as Agent,
ACTION brought against the decision of the Second Board of Appeal of EUIPO of 23 May 2017 (Case R 1927/2016-2) relating to an application claiming seniority of the identical national (Estonian) trade mark for the word mark VELUX, registered as an EU trade mark,
THE GENERAL COURT (Ninth Chamber),
composed of S. Gervasoni, President, K. Kowalik-Bańczyk and C. Mac Eochaidh (Rapporteur), Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Court Registry on 26 July 2017,
makes the following
Procedure and forms of order sought
1 By application lodged at the Court Registry on 26 July 2017, the applicant, VKR Holding A/S, brought the present action for annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 23 May 2017 (Case R 1927/2016-2) rejecting its appeal against the refusal by the examiner (‘the examiner’s decision’) to rectify, with regard to the application for the EU word mark VELUX, the date in respect of which seniority was claimed for the earlier national word mark VELUX, by substituting the date of 21 October 1983 for that of 5 March 1993 (‘the contested decision’).
2 By letter of 8 November 2017, first, EUIPO informed the General Court that the Board of Appeal had initiated a procedure for the revocation of the contested decision pursuant to 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). Second, EUIPO requested, for reasons of procedural economy, an extension of the period for lodging its response and/or, in the alternative, that the proceedings be stayed.
3 By letter of 14 November 2017, the applicant objected to EUIPO’s request to extend the period for lodging its response and its request to stay the proceedings.
4 By decision of 20 November 2017, the President of the Ninth Chamber decided, pursuant to Article 69(d) of the Rules of Procedure of the General Court, to stay the proceedings until 20 February 2018.
5 By letter of 20 February 2018, EUIPO informed the Court that, by decision of 20 November 2017 (‘the revocation decision’), the Second Board of Appeal had revoked the contested decision, pursuant to Article 103 of Regulation 2017/1001.
6 In the letter of 20 February 2018, EUIPO also requested that the Court, on the basis of Article 130(2) of the Rules of Procedure, declare that there was no need to adjudicate on the application. EUIPO did not make any submissions as to costs.
7 In its observations of 27 February 2018, the applicant indicated its agreement to the request for a ruling that there was no need to adjudicate and informed the Court that, by decision of 5 February 2018, the Second Board of Appeal had annulled the examiner’s decision. The applicant also requested that the Court order EUIPO to pay the costs.
8 Under Article 130(2) and (7) of the Rules of Procedure, if a party so requests, the General Court may declare that the action has become devoid of purpose and that there is no need to adjudicate on it. In the present case, as EUIPO has requested that the Court declare that the action has become devoid of purpose and that there is no need to adjudicate, the Court, taking the view that it has sufficient information from the documents in its possession, has decided to rule on that request without taking further steps in the proceedings.
9 It is sufficient to note, as submitted by EUIPO, that, in the light of the decision to revoke the contested decision, the present action is devoid of purpose.
10 It follows that there is no need to adjudicate on the action.
11 Article 137 of the Rules of Procedure provides that, where a case does not proceed to judgment, the costs are in the discretion of the General Court.
12 In that regard, the Second Board of Appeal found, in paragraphs 20 to 23 of the revocation decision, that the contested decision contained manifest procedural errors attributable to EUIPO and that those errors justified the revocation of the contested decision and the adoption of a new decision.
13 In the light of the above and in accordance with the applicant’s request, the Court considers that EUIPO should pay the costs.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
1. There is no need to adjudicate on the action.
2. The European Union Intellectual Property Office (EUIPO) shall pay the costs.
Luxembourg, 18 May 2018.
* Language of the case: English.
© European Union
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