ORDER OF THE GENERAL COURT (Eighth Chamber)
17 April 2018 (*)
(EU trade mark — Legal person governed by private law — No evidence of legal existence — Article 177(4) of the Rules of Procedure — Manifest inadmissibility)
In Case T‑666/17,
NeoCell Corporation, represented by M. Edenborough QC,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by A. Lukošiūtė, acting as Agent,
defendant,
ACTION brought against the decision of the Second Board of Appeal of EUIPO of 18 July 2017 (Case R 147/2017‑2), relating to the international registration designating the European Union in respect of the word mark BIOACTIVE NEOCELL COLLAGEN,
THE GENERAL COURT (Eighth Chamber),
composed of A.M. Collins, President, M. Kancheva (Rapporteur) and G. De Baere, Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Court Registry on 29 September 2017,
having regard to the plea of inadmissibility raised by EUIPO by document lodged at the Court Registry on 15 January 2018,
makes the following
Order
Facts and procedure
1        By application lodged at the Registry of the General Court on 29 September 2017, an action was brought on behalf of the applicant, NeoCell Corporation, by M. Edenborough QC, for the purposes of annulment of the decision of the Second Board of Appeal of EUIPO of 18 July 2017 (Case R 147/2017‑2) dismissing the appeal brought against the decision of the examiner refusing to protect, by means of an EU trade mark, international registration No 1298829 in respect of the word mark BIOACTIVE NEOCELL COLLAGEN. In the application, the applicant appeared to be a company governed by the laws of California (United States) with its registered address at ‘17500 Gillette Avenue, Irvine, California 92614, United States of America’.
2        By letter of 4 October 2017, the Court Registry acknowledged receipt of the application and requested the applicant to regularise same by producing proof of the existence in law of the legal person governed by private law that had brought the action and proof of the authority given to its representative.
3        By letter of 12 October 2017, the applicant’s representative submitted, pursuant to Article 177(7) of the Rules of Procedure of the General Court and for the purposes of regularising the application, the following documents:
–        a certificate of formation in respect of NeoCell Holding Company, LLC (‘the surviving company’), signed by the Secretary of State of Delaware (United States) on 1 June 2017;
–        the statutes of the surviving company dated 1 June 2017;
–        the ‘Agreement and Plan of Merger’ concluded on 24 July 2017 between the applicant and the surviving company;
–        a certificate relating to the merger of the applicant into the surviving company, signed by the Secretary of State of California (United States) on 24 July 2017;
–        a certificate relating to the merger of the applicant into the surviving company, signed by the Secretary of State of Delaware (United States) on 24 July 2017; and
–        a power of attorney granted in favour of the aforementioned representative by the surviving company and signed by Wellnext Business, LLC, dated 10 October 2017.
4        By letter of 20 October 2017, the applicant’s representative also sent to the Court Registry a World Intellectual Property Organisation (WIPO) form headed Request for the Recording of a Change in Ownership in favour of the surviving company in respect of the applicant’s international registration.
5        By letter of 23 October 2017, the Court Registry sent the applicant a further request for regularisation of the application as regards the description of its permanent address.
6        By letter of 3 November 2017, the applicant’s representative, in response to that further request for regularisation of the application, stated that ‘the permanent address of the Applicant’ is ‘1301 Sawgrass Corporate Parkway, Sunrise, Florida 33323, United States of America’.
7        By document lodged at the Court Registry on 15 January 2018, EUIPO raised a plea of inadmissibility pursuant to Article 130(1) of the Rules of Procedure.
8        By letter of 19 January 2018, the Court Registry invited the applicant to submit its observations on the plea of inadmissibility raised by EUIPO.
9        By letter of 5 February 2018, the applicant’s representative stated the following:
‘The Applicant no longer desires to continue with this Application, because over the weekend it reached a settlement with a third party that renders this Application otiose.
As such, the Applicant will not file any Observations on the EUIPO’s Plea of Inadmissibility pursuant to the letter from the Registrar dated 19 January 2018. Further, there is no need for the Court to trouble itself to rule upon the EUIPO’s Plea of Inadmissibility, but merely for the Court to make an appropriate order for costs.’
10      By letter of 14 February 2018, EUIPO indicated that it had no objections to the discontinuance, but requested that it should not bear any costs.
Forms of order sought
11      In the application, the applicant claims that the Court should:
–        annul the contested decision;
–        in the alternative, vary the contested decision to state that the trade mark applied for possesses sufficient distinctive character that no objection to its registration may be raised under Article 7(1)(b) or (c) of Regulation No 207/2009;
–        order EUIPO to pay the costs.
12      In the plea of inadmissibility, EUIPO contends that the Court should:
–        dismiss the action as manifestly inadmissible;
–        order the applicant to pay the costs.
Law
13      Under Article 126 of the Rules of Procedure, where an action 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.
14      In the present case, the Court, considering that it has sufficient information from the documents in the case file, decides that there is no need to take any further steps in the proceedings.
15      It must be noted that the admissibility of an action for annulment brought by a body under the fourth paragraph of Article 263 TFEU depends, first and foremost, on that body’s status as a legal person, which presupposes that it has acquired legal personality in accordance with the law governing its constitution (order of 21 January 2014, EPAW v Commission, T‑168/13, EU:T:2014:47, paragraphs 9 and 23). Further, it follows from settled case-law that the admissibility of an action must be judged by reference to the situation prevailing when the application was lodged (judgment of 27 November 1984, Bensider and Others v Commission, 50/84, EU:C:1984:365, paragraph 8, and order of 6 July 2017, Yanukovych v Council, C‑505/16 P, EU:C:2017:525, paragraph 53). It follows that the applicant must have legal personality on the date when the action is brought, failing which that action will be inadmissible.
16      Under Article 177(4) of the Rules of Procedure, an application made by a legal person governed by private law must be accompanied by recent proof of that person’s existence in law (extract from the register of companies, firms or associations or any other official document). That requirement is justified by the fact that it is necessary for the Court to verify whether the applicant has the capacity to bring or defend legal proceedings before the Courts of the European Union (order of 28 February 2007, Pax v OHIM — Premier Profiles, T‑238/06, not published, EU:T:2007:65, paragraph 11).
17      In the present case, the application was lodged on 29 September 2017 by NeoCell Corporation, which, according to the wording of the application, was a company established in Irvine, California (United States).
18      It is, however, clear from the file that, on 24 July 2017, more than two months before the present action was brought, the applicant entered into an ‘Agreement and Plan of Merger’ with the surviving company which lays down the conditions and effects of the merger transaction by which ‘all property, rights, privileges, powers and exemptions of [NeoCell Corporation] shall vest in the Surviving Company, and all liabilities and obligations of [NeoCell Corporation] shall become liabilities and obligations of the Surviving Company’ (‘the merger’).
19      In that ‘Agreement and Plan of Merger’, first, it is stated, under the heading ‘Effective time’, that the merger was to become effective ‘upon the filing of the Certificate of Merger with the office of the Secretary of State of the State of Delaware’ (United States), which occurred on 24 July 2017, but was to be effective with respect to NeoCell Corporation ‘upon the filing of the Certificate of Merger with the office of the Secretary of State of the State of California’ (United States), which also occurred on 24 July 2017. Second, it is stated, under the heading ‘The Merger’, that the separate existence of the applicant was to cease upon that date. Similarly, the certificate of merger signed by the Secretary of State of Delaware (United States) states that ‘NeoCell Corporation’, the applicant, is the ‘disappearing entity’, in contrast to ‘NeoCell Holding Company, LLC’, which is named the ‘surviving entity’.
20      It must be held that, since the applicant ceased to exist as a separate entity on 24 July 2017, it no longer had legal personality on the date on which the present action was brought, namely 29 September 2017.
21      That finding is not invalidated by the documents that the applicant’s representative produced for the purposes of regularising the application.
22      In that regard, it must be observed that those documents prove the existence in law, not of ‘NeoCell Corporation’, but of ‘NeoCell Holding Company LLC’, an entity separate from the applicant and created for the purpose of the merger with the applicant.
23      In the first place, the letter of 3 November 2017 incorrectly states that ‘the permanent address of the Applicant, NeoCell Holding Company, LLC’ is ‘Sunrise, Florida’. It should be noted that it quite evident from the application that the applicant, named ‘NeoCell Corporation’, was a company established under the laws of California, with an address in ‘Irvine, California’. In addition, the ‘Agreement and Plan of Merger’ states that it was entered into by, inter alia, ‘NeoCell Corporation, a California corporation’. Similarly, the certificates of merger signed by the Secretaries of State of California and Delaware designate California respectively as the ‘Jurisdiction’ and ‘State of Formation’ of NeoCell Corporation. Therefore, the address indicated by the applicant’s representative for the purposes of regularising the application is not that of the applicant, but, in fact, is that of the surviving company.
24      In the second place, the statutes provided by the applicant’s representative and dated 1 June 2017 stipulate that ‘NeoCell Holding Company, LLC, a Delaware limited liability company’ was established on the same day. Since the applicant existed as a Californian company prior to that date, those statutes appear to be not those of the applicant, but, in reality, those of the new legal entity created by the merger transaction which would become the surviving company.
25      It is apparent from those documents that the applicant has not produced any proof of its legal existence as a legal person governed by private law on the date on which the action was brought.
26      In the absence of any evidence of its legal personality on that date, it follows that the applicant does not have the capacity to bring or defend legal proceedings before the Courts of the European Union, in accordance with the case-law cited in paragraphs 15 and 16 above.
27      Accordingly, the present action must be dismissed as being manifestly inadmissible.
28      Further, it must be observed that the letter of 5 February 2018 is irrelevant, regardless of whether the entity identified as ‘the Applicant’ by its representative is NeoCell Corporation, an entity without legal personality, which cannot bring or defend legal proceedings before the Courts of the European Union and, consequently, is unable to discontinue any action, or NeoCell Holding Company, LLC, a company incorporated under the laws of Delaware which is not the applicant and, consequently, is not allowed to discontinue the present action. In any event, discontinuance in the present case would be superfluous, as it would relate to an action that, since its introduction on 29 September 2017, has been manifestly inadmissible.
Costs
29      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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by EUIPO.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby orders:
1.      The action is dismissed.
2.      NeoCell Corporation shall pay the costs.
Luxembourg, 17 April 2018.
E. Coulon
A.M. Collins
Registrar
President
*      Language of the case: English.