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

ORDER OF THE GENERAL COURT (Fifth Chamber)

4 March 2020 (*)

(Community design - Invalidity proceedings - Registered Community design representing a beverage bottle - Earlier international design - Revocation of the contested decision - Action which has become devoid of purpose - No need to adjudicate)

In Case T‑180/19,

Bibita Group SHPK, established in Tirana (Albania), represented by C. Seyfert, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by J. Ivanauskas, acting as Agent,

defendant,

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

Benkomers OOD, established in Sofia (Bulgaria),

ACTION brought against the decision of the Third Board of Appeal of EUIPO of 14 January 2019 (Case R 1070/2018-3), relating to invalidity proceedings between Bibita Group and Benkomers,

THE GENERAL COURT (Fifth Chamber),

composed of D. Spielmann, President, O. Spineanu-Matei (Rapporteur) and R. Mastroianni, Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Registry of the General Court on 26 March 2019,

having regard to the change in the composition of the Chambers of the General Court and the reassignment of the case to the Fifth Chamber,

having regard to the decisions of 20 June and 12 November 2019 to suspend the proceedings,

having regard to EUIPO’s application for a declaration that there is no need to adjudicate lodged at the Court Registry on 21 January 2020,

having regard to the applicant’s observations on the application for a declaration that there is no need to adjudicate, filed at the Court Registry on 7 February 2020,

makes the following

Order

1        By application lodged at the Court Registry on 26 March 2019, the applicant, Bibita Group SHPK, brought an action for annulment of the decision of the Third Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 14 January 2019 relating to invalidity proceedings between itself and Benkomers OOD (‘the contested decision’).

2        By letter lodged at the Court Registry on 24 May 2019, EUIPO informed the Court that the Board of Appeal had initiated a procedure for the revocation of the contested decision. That procedure was based on Article 68 of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1), on Article 39 of Commission Regulation (EC) No 2245/2002 of 21 October 2002 implementing Council Regulation No 6/2002 (OJ 2002 L 341, p. 28) and on paragraph 40 of the judgment of 18 October 2011, Reisenthel v OHIM - Dynamic Promotion (Hampers, crates and baskets) (T‑53/10, EU:T:2011:601). Attached to the letter was a communication of 17 May 2019 from EUIPO to the parties concerned, which set out the reasons for such a procedure. EUIPO requested an extension of the time limit to file the response or, alternatively, a stay of proceedings. The Court upheld the request for a stay of proceedings.

3        By letter lodged at the Court Registry on 21 October 2019, EUIPO informed the Court that a revocation decision had been sent to the parties concerned and requested a stay of proceedings for a further period. The Court granted that request.

4        By letter lodged at the Court Registry on 21 January 2020, EUIPO informed the Court that, by decision of 30 September 2019 (‘the revocation decision’), the Third Board of Appeal had revoked the contested decision, pursuant to Article 68 of Regulation No 6/2002, Article 39 of Regulation No 2245/2002 and paragraph 40 of the judgment of 18 October 2011, Hampers, crates and baskets (T‑53/10, EU:T:2011:601). EUIPO also stated that the revocation decision had become final. Taking the view that there was therefore no longer any need to adjudicate on the action, EUIPO requested that the Court issue an order that there is no need to adjudicate, in accordance with Article 130(2) of its Rules of Procedure. EUIPO did not apply for costs.

5        By letter lodged at the Court Registry on 7 February 2020, 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.

6        The effect of Article 130(2) of the Rules of Procedure is that a party may apply to the 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 those rules, 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.

7        In the present case, it is sufficient to find that, having regard, first, to the revocation of the contested decision and, second, to the fact that the revocation decision has become final, the present action has become devoid of purpose and there is no longer any need to adjudicate on it (see, to that effect and by analogy, 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).

8        According to Article 137 of the Rules of Procedure, where a case does not proceed to judgment the costs are to be in the discretion of the Court.

9        In the present case, in the communication of 17 May 2019 and in the revocation decision, the Third Board of Appeal held that the contested decision was vitiated by an obvious procedural error attributable to it, so that the contested decision had to be revoked in its entirety. Accordingly, the disappearance of the subject matter of the dispute is the direct consequence of the revocation of the contested decision which has become final.

10      Under those circumstances and in accordance with the applicant’s request, the General Court finds that a fair assessment will be made in holding that EUIPO shall bear, in addition to its own costs, those incurred by the applicant in the present action.

On those grounds,

THE GENERAL COURT (Fifth 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 shall pay the costs incurred by Bibita Group SHPK.

Luxembourg, 4 March 2020.

*      Language of the case: English.

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