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

ORDER OF THE GENERAL COURT (Second Chamber)

9 March 2020 (*)

(EU trade mark — Cancellation of the trade mark on which the application for a declaration of invalidity is based — No need to adjudicate)

In Case T‑60/19,

Republic of Cyprus, represented by S. Malynicz QC and V. Marsland, Solicitor,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by D. Gája and H. O’Neill, acting as Agents,

defendant,

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

Filotas Bellas & Yios AE, established in Alexandreia (Greece),

ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 20 November 2018 (Case R 2296/2017-4) relating to invalidity proceedings between the Republic of Cyprus and Filotas Bellas & Yios,

THE GENERAL COURT (Second Chamber),

composed of V. Tomljenović, President, F. Schalin (Rapporteur) and P. Škvařilová-Pelzl, Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Court Registry on 31 January 2019,

makes the following

Order

1        By application lodged at the Registry of the General Court on 31 January 2019, the Republic of Cyprus brought an action seeking the annulment of the decision of the Fourth Board of Appeal of the European Intellectual Property Office (EUIPO) of 20 November 2018 which had confirmed the rejection of its application for a declaration of invalidity of the European Union figurative trade mark Halloumi Vermion grill cheese, made on the basis of Article 60(1) of Regulation No 207/2009 (now Article 60(1) of Regulation (EU) 2017/1001) (‘the contested decision’).

2        By letter lodged at the Registry of the General Court together with the application, the Republic of Cyprus informed the General Court that, following an action brought in the United Kingdom by a third party, the earlier right relied on in support of the invalidity proceedings in the case which gave rise to the contested decision, in the present case the earlier UK certification word mark HALLOUMI, filed on 22 December 1990 and subsequently registered on 22 February 2002 under number 1451888, had been cancelled by the United Kingdom Intellectual Property Office on 2 May 2018 (‘the cancellation decision’).

3        The Republic of Cyprus also stated that the cancellation decision had been given in default of the Republic of Cyprus submitting any defence in writing by the prescribed deadline and that the appeal it had lodged against that decision had itself been dismissed, but that it nevertheless intended to challenge that dismissal.

4        On 19 March 2019, the President of the Second Chamber adopted a decision to stay the proceedings until 20 May 2019, so that the Republic of Cyprus could inform the General Court whether the cancellation decision was final.

5        By letters lodged at the Registry of the General Court on 15 May and 10 June 2019, the Republic of Cyprus informed the General Court that its application seeking to reopen the proceedings leading to the cancellation decision had been refused.

6        On 4 July 2019, in the context of a measure of organisation of procedure, the parties were requested to submit their observations on the fact that the action was likely to be devoid of purpose, with the result that there was no longer any need to adjudicate on it.

7        By its reply of 12 July 2019, EUIPO submitted that the cancellation decision was final and that that decision had ex tunc effect, depriving the present proceedings before the General Court of their purpose.

8        By its reply of 22 July 2019, the Republic of Cyprus requested a further stay of the proceedings for two months, stating that EUIPO had made such a request in respect of two cases pending before the Court of Justice, namely Case C‑608/18 P and Case C‑609/18 P, which concerned oppositions based on the same earlier right as the one relied on in the present proceedings.

9        By decision of 4 September 2019, the President of the Second Chamber adopted a second decision to stay the proceedings until 4 November 2019.

10      On 19 November 2019, in the context of a measure of organisation of procedure, the parties were again requested to submit their observations on the effects of the cancellation decision and on the fact that the action was likely to be devoid of purpose.

11      By its reply of 25 November 2019, EUIPO submitted that the Republic of Cyprus had no further remedies against the cancellation decision, which was therefore final. EUIPO stated that, in those circumstances, the earlier trade mark must be regarded as having been cancelled with ex tunc effect, depriving the present proceedings before the General Court of purpose. EUIPO raised no objection to the action being declared devoid of purpose but requested that the Republic of Cyprus be ordered to bear the costs.

12      By its reply of 5 December 2019, the Republic of Cyprus confirmed that the cancellation decision had become final and that the earlier trade mark was deemed never to have been registered. In the annex to that reply, there was a copy of the cancellation decision and of the decision of the Court of Appeal (England & Wales) (Civil Division) of 6 June 2019 definitively refusing any remedy against the cancellation decision.

13      It must be recalled that, in accordance with the provisions of Article 131(1) of the Rules of Procedure of the General Court, the Court may at any time, of its own motion, on a proposal from the Judge-Rapporteur and after hearing the parties, decide to rule by reasoned order if it declares that the action has become devoid of purpose and that there is no longer any need to adjudicate on it.

14      In an action brought against a decision of a Board of Appeal rejecting an application for a declaration of invalidity of an EU trade mark, where, after that action is lodged, the earlier right on which the invalidity proceedings are based is definitively cancelled with ex tunc effect, its registration being deemed never to have happened, the application for a declaration of invalidity and the decision ruling on that application must themselves be deemed never to have existed (see, to that effect and by analogy, orders of 29 May 2018, Helbrecht v EUIPO — Lenci Calzature (SportEyes), T‑333/14 DEP, not published, EU:T:2018:325, paragraph 22, and of 27 September 2010, Hidalgo v OHIM — Bodegas Hidalgo — La Gitana (HIDALGO), T‑365/08, not published, EU:T:2010:407, paragraph 6).

15      In the present case, after the cancellation decision became final, the earlier UK certification word mark HALLOUMI was definitively cancelled with ex tunc effect. It follows that the registration of that trade mark, the application for a declaration of invalidity made to EUIPO on the basis of that mark and the contested decision must all be deemed never to have existed.

16      In those circumstances and in accordance with the provisions referred to in paragraph 13 above, the parties having been heard, it must be held that the present action has become devoid of purpose and that there is no longer any need to adjudicate on it.

17      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.

18      In the circumstances of the present case, the Court finds that it is appropriate for the Republic of Cyprus to bear the costs.

On those grounds,

THE GENERAL COURT (Second Chamber)

hereby orders:

1.      There is no longer any need to adjudicate on the action.

2.      The Republic of Cyprus shall bear the costs.

Luxembourg, 9 March 2020.

*      Language of the case: English.

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