Order — ECLI:EU:T:2017:502
Date: 2017-07-13
Language of the case: English
Court formation: Fourth Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - inadmissible
Origin: Germany

summary of the arguments regarding the action in Case R 1002/2014-2 was provided in an annex to the ancillary action in Case R 1137/2014-2. Consequently, the arguments set out in support of the action in Case R 1002/2014-2 were the same as those set out in support of the ancillary action. 47 In the fifth place, the reasoning in the contested decision is in large part identical to the reasoning in the decision of 21 May 2015 in so far as the decision of 21 May 2015 responds to the applicant’s ancillary appeal, as indeed the applicant, in essence, notes. 48 In the sixth place, the merely confirmatory nature of the contested decision, that is to say the absence of any re-examination or new factors, also follows from several other factors. 49 First, it appears from paragraphs 15 and 16 of the decision of 21 May 2015 that the Board of Appeal examined the application of Article 8(1)(b) of Regulation No 207/2009 in respect of all the contested services, thus including ‘retailing, in particular via the Internet, of babies’ napkins of cellulose’. 50 Second, paragraph 14 of the contested decision states that Case R 1002/2014-2 was joined to Case R 1137/2014-2 since it concerned the same mark applied for, same contested decision of the Opposition Division and the same parties, with the result that the reasoning in the contested decision would follow in line with that of the latter action. 51 Similarly, in paragraph 17 of the contested decision, the Board of Appeal specifically stated that it would examine the applicant’s claim, as regards the Opposition Division’s finding in relation to the proof of genuine use and the applicant’s submission that the earlier marks had not been used as registered, in line with Case R 1137/2014-2, in which the proof of genuine use of the earlier marks had also been assessed. 52 Third, it is also clear that the applicant knew, at the time of bringing this action, both that the decision of 21 May 2015 had become final and that the contested decision was merely confirmatory in nature, since the applicant seeks, in this action, ‘revocation’ of the decision of 21 May 2015. 53 In the seventh place, all the parties maintain, in answer to the written questions put by the Court, that as regards the claims made by the applicant, the contested decision and the decision of 21 May 2015 were identical, and that the contested decision was to be regarded as merely confirmatory of the decision of 21 May 2015. In that context, the applicant has not in fact maintained, and even less shown, that the contested decision constituted a reply to a request in which new material facts — in relation to those which underlay the earlier decision — had been presented. 54 Although the applicant claims that this action is admissible on the ground that Cases R-1002/2014-2 and R-1137/2014-2 should have been considered in joined proceedings before the Board of Appeal, in order to avoid conflicting decisions, first, suffice it to note that the applicant has maintained that the two decisions in question did not differ as regards the claims that it had made. Second, the applicant has not identified the parts of its action in Case R-1002/2014-2 which could have been assessed differently by the Board of Appeal had it considered the two actions together as joined actions. 55 The applicant has not put forward any other argument capable of calling into question the merely confirmatory nature of the contested decision and the resulting inadmissibility of its action. 56 Consequently, since the first two heads of claim in this action have been brought against a decision that is merely confirmatory of a decision which had become final, they must be rejected as inadmissible. The present action must therefore be dismissed in its entirety. Costs 57 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. Moreover, according to Article 135(1) of the Rules of Procedure, exceptionally, if equity so requires, the General Court may decide that an unsuccessful party, in addition to bearing his own costs, is to pay only a proportion of the costs of the other party or even that he is not to be ordered to pay any costs. 58 In the circumstances of this case, in which the Board of Appeal disposed of Cases R 1002/2014-2 and R 1137/2014-2 separately and where the contested decision is merely confirmatory of the decision made in Case R 1137/2014-2, the applicant must be ordered to bear its own costs and to pay those incurred by the intervener. EUIPO shall bear its own costs. On those grounds, THE GENERAL COURT (Fourth Chamber) hereby orders: 1. The action is dismissed; 2. myToys.de GmbH shall bear its own costs and pay those incurred by Laboratorios Indas, SA; 3. European Union Intellectual Property Office (EUIPO) shall bear its own costs. Luxembourg, 13 July 2017. E. CoulonH. Kanninen Registrar President * Language of the case: English.