Court of Justice of the European Communities (including Court of First Instance Decisions)

ORDER OF THE GENERAL COURT (Sixth Chamber)

19 December 2019 (*)

(EU trade mark — Opposition proceedings — Application for EU figurative mark DENIM HUNTER — Revocation of the contested decision — Action which has become devoid of purpose — No need to adjudicate)

In Case T‑74/19,

DK Company A/S, established in Ikast (Denmark), represented by S. Hansen, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by E. Markakis, acting as Agent,

defendant,

the other party to the proceedings before the Board of Appeal of EUIPO being

Hunter Boot, established in Edinburgh (United Kingdom),

ACTION brought against the decision of the Second Board of Appeal of EUIPO of 16 November 2018 (Case R 849/2018-2), relating to opposition proceedings between Hunter Boot and DK Company A/S,

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 7 February 2019,

makes the following

Order

1        By application lodged at the Court Registry on 7 February 2019, the applicant, DK Company 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 16 November 2018 (Case R 849/2018-2), relating to opposition proceedings between Hunter Boot and DK Company A/S (‘the contested decision’).

2        By letter lodged at the Court Registry on 15 April 2019, first, EUIPO informed the 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). Secondly, EUIPO requested an extension of the time limit for filing its response and, in the alternative, that the proceedings be stayed. The Court granted EUIPO’s request for an extension of the time limit.

3        By letter lodged at the Court Registry on 10 October 2019, EUIPO informed the Court that, by decision of 4 July 2019 (‘the revocation decision’), the Second Board of Appeal had revoked the contested decision, pursuant to Article 103 of Regulation 2017/1001. EUIPO also stated that the revocation decision had become final. Taking the view that there is therefore no longer any need to adjudicate on the present action, EUIPO requested that the Court issue an order that there is no need to adjudicate, in accordance with Article 130(2) of the Rules of Procedure of the General Court. EUIPO did not apply for costs.

4        By letter lodged at the Court Registry on 23 October 2019, the applicant stated that it had no objection to EUIPO’s application for a declaration that there is no need to adjudicate. The applicant requested, however, that the Court order EUIPO to pay the costs.

5        The effect of Article 130(2) of the Rules of Procedure is that a party may apply to the General Court for a declaration that the action has become devoid of purpose and that there is no longer any need to adjudicate on it. Under Article 130(7) of the Rules of Procedure, the Court is to decide on the application as soon as possible or, where special circumstances so justify, reserve its decision until it rules on the substance of the case.

6        In the present case, it is sufficient to note that, in the light of the revocation of the contested decision, the present action has become devoid of purpose and that there is no longer any need to adjudicate (see, to that effect, order of 14 June 2017, Márquez Alentà v EUIPO — Fiesta Hotels & Resorts (Representation of an ant), T‑657/16, not published, EU:T:2017:425, paragraph 5 and the case-law cited).

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 that regard, in the revocation decision, the Second Board of Appeal found that the contested decision was vitiated by an obvious procedural error attributable to EUIPO, with the result that it should be revoked in its entirety.

9        In the light of those circumstances and in accordance with the applicant’s request, the Court considers that EUIPO should be ordered to pay the costs.

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 pay the costs.

Luxembourg, 19 December 2019.

*      Language of the case: English.

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