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

ORDER OF THE GENERAL COURT (Sixth Chamber)

3 March 2020 (*)

(EU trade mark - Opposition proceedings - Application for EU word mark Xocolat - Earlier EU word mark LUXOCOLAT - Res judicata - Manifest inadmissibility)

In Case T‑871/19,

Ramona Mahr, residing in Vienna (Austria), represented by T. Rohracher, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO),

defendant,

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

Especialidades Vira, SL, established in Martorell (Spain),

ACTION brought against the decision of the Second Board of Appeal of EUIPO of 6 November 2017 (Case R 541/2017-2), relating to opposition proceedings between Especialidades Vira and Ms Mahr,

THE GENERAL COURT (Sixth Chamber),

composed of A. Marcoulli (Rapporteur), President, C. Iliopoulos and R. Norkus, Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Court Registry on 20 December 2019,

makes the following

Order

 Background to the dispute

1        On 6 July 2015, the applicant, Ms Ramona Mahr, filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO), pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by 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)).

2        The trade mark for which registration was sought is the word sign Xocolat.

3        The goods in respect of which registration was sought are in Class 30 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond to the following description: ‘Chocolate, chocolate goods, including filled, chocolate paste and coatings; cocoa products, including cocoa powder and cocoa-based mixtures in powder form; chocolates and confectionery’.

4        The trade mark application was published in Community Trade Marks Bulletin No 141/2015 of 30 July 2015.

5        On 31 August 2015, Especialidades Vira, SL filed a notice of opposition pursuant to Article 41 of Regulation No 207/2009 (now Article 46 of Regulation 2017/1001) to registration of the mark applied for in respect of the goods referred to in paragraph 3 above.

6        The opposition was based on the earlier EU word mark LUXOCOLAT, applied for on 11 June 2013 and registered on 4 November 2013 under No 11888948.

7        On 19 January 2017, the Opposition Division upheld the opposition on the basis of Article 8(1)(b) of Regulation No 207/2009 and rejected the EU trade mark application in its entirety.

8        On 17 March 2017, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 58 to 64 of Regulation No 207/2009 (now Articles 66 to 71 of Regulation 2017/1001), against the Opposition Division’s decision.

9        By decision of 6 November 2017 (‘the contested decision’), the Second Board of Appeal of EUIPO dismissed the appeal.

 Form of order sought by the applicant

10      The applicant claims that the Court should:

–        annul the contested decision;

–        order EUIPO to pay the costs.

 Law

11      Under Article 126 of the Rules of Procedure of the General Court, where an action brought before the Court is manifestly inadmissible, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.

12      According to settled case-law, a judgment’s status as res judicata is such as to bar the admissibility of an action if the proceedings disposed of by the judgment in question were between the same parties, had the same subject matter and the same legal basis, those conditions necessarily being cumulative (judgments of 25 June 2010, Imperial Chemical Industries v Commission, T‑66/01, EU:T:2010:255, paragraph 197, and of 4 May 2017, Haw Par v EUIPO - Cosmowell (GELENKGOLD), T‑25/16, not published, EU:T:2017:303, paragraph 42).

13      In the present case, it should be noted that the contested decision was the subject of an action for annulment filed by the applicant at the Court Registry  on 2 February 2018, which gave rise to the judgment of 24 October 2019, Mahr v EUIPO - Especialidades Vira (Xocolat) (T‑58/18, not published, EU:T:2019:759).

14      In that judgment, which has acquired the force of res judicata, the Court dismissed the applicant’s action.

15      Furthermore, the parties, the pleas in law and forms of order sought in the present action are identical to those in the action which gave rise to the  judgment of 24 October 2019, Xocolat (T‑58/18, not published, EU:T:2019:759).

16      It follows that the present action must be dismissed as manifestly inadmissible and there is no need for the application to be served on EUIPO or the other party to the proceedings before the Board of Appeal of EUIPO.

 Costs

17      Since the present order has been adopted before service of the application on EUIPO, and therefore before EUIPO could have incurred costs, it is sufficient to decide that the applicant must bear her own costs, in accordance with Article 133 of the Rules of Procedure.

On those grounds,

THE GENERAL COURT (Sixth Chamber)

hereby orders:

1.      The action is dismissed as manifestly inadmissible.

2.      Ms Ramona Mahr shall bear her own costs.

Luxembourg, 3 March 2020.

*      Language of the case: English.

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