ORDER OF THE GENERAL COURT (Second Chamber)

13 September 2021 ( *1 )

(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 – Revision of the order – No need to adjudicate)

In Case T‑616/19 REV,

Katjes Fassin GmbH & Co. KG, established in Emmerich am Rhein (Germany), represented by T. Schmitz, S. Stolzenburg-Wiemer, M. Breuer and I. Dimitrov, lawyers,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by A. Söder, acting as Agent,

defendant,

the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being

Haribo The Netherlands & Belgium BV, established in Breda (Netherlands), represented by A. Tiemann and C. Elkemann, lawyers,

APPLICATION for revision of the order of 10 July 2020, Katjes Fassin v EUIPO – Haribo The Netherlands & Belgium (WONDERLAND) (T‑616/19, not published, EU:T:2020:334),

THE GENERAL COURT (Second Chamber),

composed of V. Tomljenović, President, F. Schalin and I. Nõmm (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Order

Factual background to the application

1 On 18 January 2017, the applicant, Katjes Fassin GmbH & Co. KG, filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO), pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by 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)).

2 Registration as a mark was sought for the word sign WONDERLAND, that application for registration covering goods in Class 30 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended.

3 The EU trade mark application was published in European Union Trade Marks Bulletin No 2017/017 of 26 January 2017.

4 On 22 March 2017, Haribo The Netherlands & Belgium BV filed a notice of opposition, pursuant to Article 41 of Regulation No 207/2009 (now Article 46 of Regulation 2017/1001), against the registration of the mark WONDERLAND in respect of all the goods covered by the application for registration.

5 The opposition was based, inter alia, on the earlier Benelux word mark WONDERMIX, registered on 1 July 2015 under No 974248 and covering goods in Class 30.

6 The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation No 207/2009 (now Article 8(1)(b) of Regulation 2017/1001).

7 On 7 September 2018, the Opposition Division upheld the opposition on the ground that there was a likelihood of confusion with the earlier Benelux mark in respect of all the goods covered by the application for registration of the mark WONDERLAND.

8 On 6 November 2018, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 66 to 71 of Regulation 2017/1001, against the decision of the Opposition Division.

9 By decision of 8 July 2019 (Case R 2164/2018‑4), the Fourth Board of Appeal of EUIPO partially annulled the decision of the Opposition Division.

10 On 12 September 2019, the applicant brought an action before the Court against the decision of the Fourth Board of Appeal in that the latter had concluded that there was a likelihood of confusion in respect of part of the contested goods.

11 By order of 10 July 2020, Katjes Fassin v EUIPO – Haribo The Netherlands & Belgium (WONDERLAND) (T‑616/19, not published, EU:T:2020:334), the Court dismissed the action brought by the applicant.

12 By letter of 27 July 2020, the applicant sought clarification from EUIPO as to why it had not been informed that, by fax of 25 June 2020, the opponent, intervener before the Court, had withdrawn its opposition to the registration of the mark WONDERLAND.

Procedure and forms of order sought

13 By document lodged at the Court Registry on 18 September 2020, the applicant made an application, pursuant to Article 169 of the Rules of Procedure of the General Court, read in conjunction with Article 44 of the Statute of the Court of Justice of the European Union, for revision of the order of 10 July 2020, WONDERLAND (T‑616/19, not published, EU:T:2020:334).

14 By document lodged at the Court Registry on 23 October 2020, EUIPO submitted its observations on the application for revision.

15 By order of 22 April 2021, Katjes Fassin v EUIPO – Haribo The Netherlands & Belgium (WONDERLAND) (T‑616/19 REV, EU:T:2021:213), the Court declared the application for revision of the order of 10 July 2020, WONDERLAND (T‑616/19, not published, EU:T:2020:334) admissible.

16 By document lodged at the Court Registry on 25 May 2021, the applicant submitted its observations on the substance.

17 By document lodged at the Court Registry on 26 May 2021, EUIPO submitted its observations on the substance.

18 The applicant claims that the Court should: – resume the proceedings in Case T‑616/19; – amend the order of 10 July 2020, WONDERLAND (T‑616/19, not published, EU:T:2020:334); – order each party to bear its own costs relating to the main proceedings; – order EUIPO to pay the costs of the revision procedure.

19 EUIPO contends that the Court should: – dismiss the application for revision; – not order it to pay the costs of the main proceedings or of the revision procedure.

Law

20 In support of its application for revision, the applicant relies on the fact that the intervener withdrew its opposition to registration of the mark WONDERLAND. It submits that that fact had been unknown to it and to the Court at the time of service of the order of 10 July 2020, WONDERLAND (T‑616/19, not published, EU:T:2020:334). It claims that that new fact must lead the Court to adopt an order that there is no need to adjudicate and thus to a different determination from that made in the order referred to above.

21 First of all, it should be borne in mind that Article 169(1) of the Rules of Procedure provides that, in accordance with Article 44 of the Statute of the Court of Justice of the European Union, an application for revision of a decision of the General Court 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.

22 Next, it is apparent from settled case-law that revision is not an appeal procedure but an exceptional review procedure that allows the force of res judicata attaching to a final judicial decision to be called in question on the basis of the findings of fact relied upon by the court. Revision presupposes the discovery of elements of a factual nature that existed before the judicial decision was given or served and that were unknown at that time to the court which gave that decision as well as to the party applying for revision and which, had that court been able to take them into consideration, could have led it to a different determination of the proceedings (see, to that effect, orders of 4 December 2014, JAS v Commission, T‑573/11 REV, not published, EU:T:2014:1124, paragraph 23 and the case-law cited, and of 28 November 2017, Staelen v Ombudsman, T‑217/11 REV, not published, EU:T:2017:861, paragraph 23 and the case-law cited).

23 Furthermore, under Article 169(2) of the Rules of Procedure, without prejudice to the time limit of 10 years prescribed in the third paragraph of Article 44 of the Statute of the Court of Justice of the European Union, an application for revision is to be made within three months of the date on which the facts on which the application is founded came to the applicant’s knowledge. In accordance with Article 169(3)(d) of those Rules of Procedure, an application for revision is to indicate the nature of the evidence to show that there are facts justifying revision, and that the time limits laid down in paragraph 2 of that article have been observed.

24 Lastly, it must be borne in mind that, in accordance with the second paragraph of Article 44 of the Statute of the Court of Justice of the European Union, the revision is to be opened by a decision expressly recording the existence of a new fact, recognising that it is of such a character as to lay the case open to revision and declaring the application admissible on that ground. Article 169(5) of the Rules of Procedure provides that, after giving the parties an opportunity to submit their observations, the General Court is, without prejudice to its decision on the substance, to give its decision on the admissibility of the application by way of an order.

25 That splitting of the procedure into two phases, the first concerning admissibility and the second the substance, can be explained by the strictness of the conditions governing revision, which may itself be understood in consideration of the fact that revision defeats the force of res judicata (see judgment of 8 July 1999, DSM v Commission, C‑5/93 P, EU:C:1999:364, paragraph 66 and the case-law cited).

26 In the present case, by order of 22 April 2021, WONDERLAND (T‑616/19 REV, EU:T:2021:213), the Court declared the application for revision of the order of 10 July 2020, WONDERLAND (T‑616/19, not published, EU:T:2020:334) admissible. It held that the withdrawal of the opposition – of which the Court itself and the applicant were unaware – constituted a new fact which is of such a nature as to be a decisive factor within the meaning of Article 169(1) of the Rules of Procedure, in that the continuation of the proceedings itself could be contingent on it. It thus held that all the conditions governing the admissibility of an application for revision laid down in Article 169 were satisfied.

27 Accordingly, it is necessary to examine the question of substance and, therefore, to determine whether the order of 10 July 2020, WONDERLAND (T‑616/19, not published, EU:T:2020:334), must be reviewed.

28 According to settled case-law, where the opposition is withdrawn in the course of proceedings before the Board of Appeal for a decision on the opposition or 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, with the result that they become devoid of purpose (order of 9 February 2004, Synopharm v OHIM – Pentafarma (DERMASYN), T‑120/03, EU:T:2004:33, paragraph 20; see, also, order of 2 April 2020, Thai World Import & Export v EUIPO – Elvir (Yaco), T‑3/19, not published, EU:T:2020:150, paragraph 4 and the case-law cited).

29 In the present case, the intervener withdrew its opposition before EUIPO, which EUIPO confirmed in its observations on the application for revision. EUIPO also stated that that withdrawal had taken effect before the order of 10 July 2020, WONDERLAND (T‑616/19, not published, EU:T:2020:334), was served.

30 It follows that, at the time of service of the order of 10 July 2020, WONDERLAND (T‑616/19, not published, EU:T:2020:334), the basis of the opposition proceedings had ceased to exist and the decision which was the subject of the action for annulment in the main proceedings had to be deemed never to have existed.

31 Consequently, had it been informed in good time of the withdrawal of the opposition, the Court would not have adopted the order of 10 July 2020, WONDERLAND (T‑616/19, not published, EU:T:2020:334).

32 Accordingly, the application for revision should be granted and, in accordance with Article 130(2) of the Rules of Procedure, it should be held that, following the withdrawal of the opposition to registration of the mark WONDERLAND, the action for annulment in Case T‑616/19 has become devoid of purpose and there is therefore no longer any need to adjudicate (see, to that effect and by analogy, order of 2 April 2020, Yaco, T‑3/19, not published, EU:T:2020:150, paragraph 6).

Costs relating to the annulment proceedings in Case T‑616/19

33 Article 137 of the Rules of Procedure provides that, where a case does not proceed to judgment, the costs are to be in the discretion of the Court.

34 In the circumstances of the present case, the Court finds that it is appropriate to order each party to bear its own costs.

Costs relating to the revision procedure

35 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.

36 EUIPO and the intervener have been unsuccessful. Both parties were equally negligent in failing to inform in good time the Court and the applicant of the withdrawal of the intervener’s opposition to registration of the mark WONDERLAND. However, the applicant requested that only EUIPO be ordered to pay the costs of the revision procedure. Accordingly, EUIPO must be ordered to bear, in addition to its own costs, half of the costs incurred by the applicant relating to the revision procedure. The applicant shall therefore bear half of its own costs.

On those grounds, THE GENERAL COURT (Second Chamber) hereby orders:

1. The application for revision of the order of 10 July 2020, Katjes Fassin v EUIPO – Haribo The Netherlands & Belgium (WONDERLAND) (T‑616/19, not published, EU:T:2020:334), is granted.

2. There is no longer any need to adjudicate on the action in Katjes Fassin v EUIPO – Haribo The Netherlands & Belgium (WONDERLAND) (T‑616/19).

3. Each party shall bear its own costs relating to the annulment proceedings in Katjes Fassin v EUIPO – Haribo The Netherlands & Belgium (WONDERLAND) (T‑616/19).

4. The European Union Intellectual Property Office (EUIPO) shall bear its own costs relating to the revision procedure.

5. EUIPO shall pay half of the costs of Katjes Fassin GmbH & Co. KG relating to the revision procedure.

6. Katjes Fassin shall bear half of its own costs relating to the revision procedure.

7. The registrar shall annex the original of the present order to the original of the order of 10 July 2020, Katjes Fassin v EUIPO – Haribo The Netherlands & Belgium (WONDERLAND) (T‑616/19, not published, EU:T:2020:334).

8. The registrar shall make note of the present order in the margin of the order of 10 July 2020, Katjes Fassin v EUIPO – Haribo The Netherlands & Belgium (WONDERLAND) (T‑616/19, not published, EU:T:2020:334).

Luxembourg, 13 September 2021. E. Coulon Registrar V. Tomljenović President

( *1 ) Language of the case: German.