ORDER OF THE COURT (Seventh Chamber)
5 July 2018 (*)
(Appeal — EU trade mark — Invalidity proceedings — Withdrawal of the application for a declaration of invalidity — Appeal which has become devoid of purpose — No need to adjudicate)
In Case C‑162/18 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 28 February 2018,
Wenger SA, established in Delémont (Switzerland), represented by A. Sulovsky, Rechtsanwältin,
appellant,
the other parties to the proceedings being:
European Union Intellectual Property Office (EUIPO), represented by D. Botis, acting as Agent,
defendant at first instance,
Swissgear Sàrl, established in Baar (Switzerland),
intervener at first instance,
THE COURT (Seventh Chamber),
composed of A. Rosas (Rapporteur), President of the Chamber, A. Prechal and E. Jarašiūnas, Judges,
Advocate General: E. Sharpston,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to give a decision by reasoned order, in accordance with Article 149 of the Rules of Procedure of the Court,
makes the following
Order
1        By its appeal, Wenger SA seeks to have set aside the judgment of the General Court of the European Union of 23 January 2018, Wenger v EUIPO — Swissgear (SWISSGEAR) (T‑869/16, not published, ‘the judgment under appeal’, EU:T:2018:23), by which the General Court dismissed its action for annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 20 September 2016 (Case R 2098/2015‑5) relating to invalidity proceedings brought by Swissgear Sàrl against Wenger.
Background to the dispute and the judgment under appeal
2        On 20 August 2008, Wenger filed an application for registration of the word sign SWISSGEAR as an EU trade mark.
3        That mark was registered on 16 June 2009.
4        On 17 June 2014, Swissgear filed an application with EUIPO for a declaration that that mark was invalid.
5        By decision of 19 August 2015, the Cancellation Division of EUIPO partially rejected that application.
6        On 19 October 2015, Swissgear filed a notice of appeal against that decision. By the decision of 20 September 2016, the Fifth Board of Appeal of EUIPO upheld the appeal, finding that the registration of the contested mark was invalid.
7        By application lodged at the Registry of the General Court on 7 December 2016, Wenger sought annulment of that latter decision.
8        By the judgment under appeal, the General Court dismissed Wenger’s action and ordered it to pay the costs of the proceedings.
Procedure before the Court
9        By letter dated 12 March 2018, Wenger informed the Court that, following an amicable agreement concluded between itself and Swissgear, the latter had, on 6 March 2018, withdrawn its application to EUIPO for a declaration of invalidity of the mark Swissgear. Wenger enclosed with that letter EUIPO’s certification relating to the change of lawyer representing Swissgear and to the withdrawal of the application for a declaration of invalidity.
10      In that letter, Wenger noted that Swissgear had withdrawn its application for a declaration of invalidity of the mark in question before the decision of the Fifth Board of Appeal of EUIPO of 20 September 2016 declaring the registration of that mark to be invalid could take effect and become final. As a result of that withdrawal, it claims, the present appeal proceedings have become devoid of purpose, with the result that there is no longer any need to adjudicate on the appeal. Wenger has therefore asked the Court to set aside the judgment under appeal, to declare that the application for a declaration of invalidity has been withdrawn and to take all necessary measures to maintain the contested mark.
11      Swissgear has not taken a position on Wenger’s request for a ruling that there is no need to adjudicate.
12      By letter of 20 April 2018, EUIPO stated that it had no objection to a declaration that the proceedings are now devoid of purpose, while requesting the Court not to order it to pay the costs.
The appeal
13      It should be noted, at the outset, that an appellant’s interest in bringing appeal proceedings presupposes that the appeal must be likely, if successful, to procure an advantage for it (order of 16 May 2013, Volkswagen v OHIM, C‑260/12 P, not published, EU:C:2013:316, paragraph 13 and the case-law cited).
14      In the present case, none of the parties has claimed any interest in pursuing the present proceedings.
15      In that regard, it is common ground that the agreement reached between Wenger and Swissgear led to the withdrawal by the latter of the application for a declaration of invalidity which it had filed in respect of the mark owned by Wenger and, thus, that agreement had the effect of bringing to an end the dispute concerning that application for a declaration of invalidity.
16      As that application had been withdrawn, as follows from Article 66(1), read in conjunction with Article 71(3), of 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), before the decision of the Fifth Chamber of Appeal of EUIPO of 20 September 2016 declaring registration of the contested mark invalid took effect and had become final, it must be held, on account of that withdrawal, that that decision has become inoperative (see, to that effect, order of 12 April 2018, Cryo-Save v EUIPO, C‑327/17 P, not published, EU:C:2018:235, paragraph 15).
17      In those circumstances, the present appeal has become devoid of purpose, and there is accordingly no need to adjudicate on it.
Costs
18      Under Article 149 of the Rules of Procedure of the Court of Justice, applicable to the procedure on appeal pursuant to Article 190 thereof, where a case does not proceed to judgment, the Court is to give a decision as to costs.
19      In accordance with Article 142 of those rules, applicable to the procedure on appeal pursuant to Article 184(1) thereof, costs are, in such a case, to be in the discretion of the Court, subject, however, to the provisions of Article 184(2) to (4) of those rules.
20      In the present case, there is no need to rule because of the agreement reached between Wenger and Swissgear. It follows therefrom that the fact that there is no need to adjudicate is attributable to the appellant and the intervener at first instance.
21      However, the proceedings before the Court involved a written part in which the intervener at first instance did not participate. Consequently, in accordance with Article 184(4) of the Rules of Procedure, that intervener cannot be ordered to pay the costs incurred by EUIPO in the present proceedings.
22      Accordingly, it is appropriate to order the appellant alone to bear its own costs and to pay the costs incurred by EUIPO.
23      Finally, it is not for the Court to rule on the costs relating to the proceedings at first instance, since there is no need to rule on the present appeal and since, therefore, the judgment under appeal has not been set aside.
On those grounds, the President of the Court hereby orders:
1.      There is no need to adjudicate on the present appeal.
2.      Wenger SA shall bear its own costs and shall pay those incurred by the European Union Intellectual Property Office (EUIPO) in the context of the present proceedings.
Luxembourg, 5 July 2018.
A. Calot Escobar
A. Rosas
Registrar
President of the Seventh Chamber
*      Language of the case: English.