Order — ECLI:EU:T:2018:923
Date: 2018-12-11;2018-12-12
Language of the case: English
Court formation: Second Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - decision unnecessary;Action for annulment - inadmissible
Origin: Ireland

summary of the pleas on which the application is based. The information given must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court to decide the case. The same considerations also apply to all claims, which must be accompanied by pleas and arguments enabling both the defendant and the Court to assess their validity. Thus, the essential elements of fact and of law on which the action is based must be indicated, at least in summary form, coherently and intelligibly in the application itself. Similar requirements apply where a claim or an argument is relied on in support of a plea in law (see judgment of 13 March 2013, Biodes v OHIM — Manasul Internacional (FARMASUL), T‑553/10, not published, EU:T:2013:126, paragraph 22 and the case-law cited). 74 In essence, the applicant criticises the Board of Appeal for expressing a view, albeit indirectly, on the validity of the applicant’s earlier mark, whereas the Board has no jurisdiction to that effect. The present plea in law is therefore understandable and cannot be disregarded from the outset on the basis on Article 177(1)(d) of the Rules of Procedure. 75 The fact nonetheless remains that the action, in so far as it is directed against the presence of certain assessments of the descriptive character of the word ‘cheapflights’ in the contested decision, must be declared inadmissible, since the passages at issue in the contested decision are not capable of adversely affecting the applicant. 76 As has already been pointed out in paragraph 58 above, regardless of the grounds on which a decision of a Board of Appeal is based, only the operative part thereof is capable of producing legal effects and, consequently, of adversely affecting a person’s legal interests. By contrast, the assessments made in the grounds of a decision are not in themselves capable of forming the subject matter of an action under Article 72 of Regulation 2017/1001. They can be subject to judicial review by the Courts of the European Union only to the extent that, as grounds of a measure adversely affecting the interests of those concerned, they constitute the essential basis for the operative part of that measure. 77 In the present case, it is clear from the broad logic of the contested decision that paragraph 7 thereof was not put forward in support of any paragraph in its operative part. As for paragraph 16 of the contested decision, although it is one of the grounds on which the Grand Board of Appeal relied for the purposes of concluding, in paragraph 2 of the operative part of the decision, that each of the parties should bear its own costs, that aspect of the operative part is not disputed by the applicant. It is, in fact, clear from the application that it is solely the Grand Board of Appeal’s decision to close the opposition and appeal proceedings, set out in paragraph 1 of the operative part of the contested decision, which is disputed, and not the apportionment of costs, set out in paragraph 2 of that operative part. 78 Consequently, the expressions criticised, which are set out in the grounds for the contested decision, cannot be linked to the paragraph of the operative part disputed by the applicant and cannot, in themselves, be subject to an appeal before the Court. 79 In the light of the foregoing, the action must be declared inadmissible in so far as it is directed against, first, the closure, by the contested decision, of the appeal proceedings without examination of the relative ground for refusal under Article 8(1)(b) of Regulation 2017/1001, and, second, the presence of certain assessments relating to the descriptive character of the word ‘cheapflights’ in the contested decision; there is, furthermore, no longer any need to adjudicate on the action in so far as it is directed against the absence of examination, by the Board of Appeal, of the incidental submissions that the applicant claims to have presented on the basis of Article 8(3) of Regulation No 216/96. Costs 80 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under 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. 81 Inasmuch as the present action has, in part, been declared inadmissible and has, in part, become devoid of purpose, a fair application of the abovementioned provisions will be to order the applicant to pay half of the costs incurred by EUIPO, in addition to its own costs. On those grounds, THE GENERAL COURT (Second Chamber) hereby orders: 1. There is no longer any need to adjudicate on the action in so far as it is directed against the closure of the appeal proceedings by the decision of the Grand Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 1 June 2017 (Case R 1893/2011-G) with regard to the goods and services in Classes 9, 16, 35 and 42 in respect of which the Opposition Division had rejected the opposition of CheapFlights International Ltd. 2. The action is dismissed as inadmissible as to the remainder. 3. CheapFlights International shall pay, in addition to its own costs, half of the costs incurred by EUIPO. 4. EUIPO shall bear half of its own costs. Luxembourg, 11 December 2018. E. CoulonM. Prek RegistrarPresident * Language of the case: English.