62019TO0616(01)_RES
Case T‑616/19 REV
Katjes Fassin GmbH & Co. KG
v
European Union Intellectual Property Office
Order of the General Court (Second Chamber), 22 April 2021
(Procedure – Application for revision – EU trade mark – Opposition proceedings – Action against a decision of EUIPO partially refusing to register a mark – Withdrawal of the opposition before service of the order dismissing the action – Fact unknown to the applicant and to the General Court – Time limit for the application – Interest in initiating the revision procedure – Admissibility)
Judicial procedure – Revision – Conditions for the admissibility thereof – New fact – Definition – Fact which is of such a nature as to be a decisive factor and which is unknown to the applicant and to the General Court – Withdrawal of the opposition before service of the order dismissing the action – Included
(European Parliament and Council Regulation 2017/1001, Art. 8(1)(b); Statute of the Court of Justice, Art. 44; Rules of Procedure of the General Court, Art. 169)
(see paragraphs 20, 22-24, 29, 31, 33-35)
Judicial procedure – Revision – Interest in initiating the revision procedure – Application for revision capable of procuring an advantage for the party making it – Definition – Subject matter of the action ceases to exist – Factual and legal considerations and allocation of costs to the detriment of the applicant for revision – Included
(Statute of the Court of Justice, Art. 44; Rules of Procedure of the General Court, Art. 169)
(see paragraphs 38, 39, 41, 42)
Résumé
On 18 January 2017, the applicant, Katjes Fassin GmbH & Co. KG, sought to register the word mark WONDERLAND with the European Union Intellectual Property Office (EUIPO). Haribo The Netherlands & Belgium BV filed a notice of opposition on the basis of its earlier Benelux word mark WONDERMIX. By decision of 8 July 2019, the Fourth Board of Appeal of EUIPO partially annulled the decision of the Opposition Division upholding the opposition in its entirety and concluded that there was a likelihood of confusion in respect of part of the goods covered by the application for registration.
The action brought by Katjes Fassin against that decision was dismissed by the Court by order of 10 July 2020. (
1
) After having become aware that the opponent had withdrawn its opposition to the registration of the mark WONDERLAND before the Court had made its order, Katjes Fassin made an application for revision by which it requested that the Court resume the proceedings in the case at hand and amend its order.
By a first decision, (
2
)the Court declares the application for revision admissible. By a second decision, (
3
)it grants that application and holds that there is no longer any need to adjudicate on the action for annulment, which became devoid of purpose.
Findings of the Court
In the first decision, the Court rules on the admissibility of the application for revision. As a preliminary point, it notes that an application for revision of its decision may be made only on discovery of a fact which is of such a nature as to be a decisive factor and which, when the judgment was delivered or the order served, was unknown to the General Court and to the party claiming revision. (
4
) Furthermore, it states that revision is an exceptional review procedure that allows the force of res judicata attaching to a final judicial decision to be called into question on the basis of the findings of fact relied upon by the court.
Having made those observations, the Court examines, in the first place, whether the application for revision satisfies the conditions governing admissibility. In that regard, it observes that, although the opponent informed EUIPO of the withdrawal of the opposition, EUIPO did not make that information available to Katjes Fassin. Consequently, as it had not been informed of the actual withdrawal of the opposition before service of the order of 10 July 2020, the applicant was not in a position to know that fact on the date of service of that order. The Court adds that, when it made that order, it did not have any information on the withdrawal of the opposition, either, which had not been notified to it either by EUIPO or by the opponent.
Furthermore, the Court notes that the withdrawal of the opposition is a fact which is of such a nature as to be of decisive influence. Where the opposition is withdrawn in the course of proceedings before the EU judicature for a ruling on an appeal to EUIPO against the decision on opposition, there is no longer any basis for the proceedings and they become devoid of purpose. It states that, had the withdrawal of the opposition been known to it before the order of 10 July 2020 was made, it cannot be excluded that it would have been led not to adopt that order.
In the second place, the Court rules on Katjes Fassin’s interest in initiating the revision procedure. It notes that, in the case at hand, the existence of that interest cannot be ruled out despite the fact that the action for annulment became devoid of purpose following the withdrawal of the opposition. After having noted the specific purpose of revision, namely to call into question the force of res judicata of a judicial decision, the Court finds that calling into question the force of res judicata of the order of 10 July 2020, which contains factual and legal considerations unfavourable to the applicant, procures for the latter an advantage justifying its interest in initiating the revision procedure. In addition, it observes that the revision of that order could also procure for the applicant for revision an advantage as regards the allocation of the costs that it had been ordered to pay.
The Court concludes that the admissibility criteria for the application for revision are fulfilled and that Katjes Fassin has an interest in seeking revision of the order of 10 July 2020.
In the second decision, the Court rules on the substantive issue. It finds that, at the time of service of the order of 10 July 2020, there was no longer any basis for the opposition proceedings and that the decision that was the subject of the action for annulment in the case in the main proceedings was to be deemed never to have existed. Consequently, had it been informed in good time of the withdrawal of the opposition, it would not have made that order.
Accordingly, the Court grants the application for revision, finding that, as a consequence of the withdrawal of the opposition, the action for annulment became devoid of purpose and that there is therefore no longer any need to adjudicate, and declares that each party is to bear its own costs relating to the annulment proceedings.
(
1
)	Order of 10 July 2020, Katjes Fassin v EUIPO – Haribo The Netherlands & Belgium (WONDERLAND)(T‑616/19, not published, EU:T:2020:334).
(
2
)	Order of 22 April 2021, Katjes Fassin v EUIPO – Haribo The Netherlands & Belgium (WONDERLAND) (T‑616/19 REV, EU:T:2021:213).
(
3
)	Order of 13 September 2021, Katjes Fassin v EUIPO – Haribo The Netherlands & Belgium (WONDERLAND) (T‑616/19 REV, EU:T:2021:597).
(
4
)	Article 169(1) of the Rules of Procedure of the General Court.