Corte di giustizia UE n. 147/2018

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 17 April 2018 ( * ) (EU trade mark — Legal person governed by private law — No evidence of legal existence — [OSCURATO:PERSONA] 177(4) of the Rules of Procedure — Manifest inadmissibility) [OSCURATO:PERSONA] T‑666/17, [OSCURATO:PERSONA] Corporation, represented by M. Edenborough QC, applicant, v [OSCURATO:PERSONA] (EUIPO), represented by A. Lukošiūtė, acting as Agent, defendant, ACTION brought against the decision of the [OSCURATO:PERSONA] of Appeal of EUIPO of 18 July 2017 ([OSCURATO:PERSONA] R 147/2017‑2), relating to the international registration designating the [OSCURATO:PERSONA] in respect of the word mark [OSCURATO:PERSONA], [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of A.M. [OSCURATO:PERSONA], [OSCURATO:PERSONA], M. Kancheva (Rapporteur) and G. [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA]: E. Coulon, having regard to the application lodged at the [OSCURATO:PERSONA] on 29 September 2017, having regard to the plea of inadmissibility raised by EUIPO by document lodged at the [OSCURATO:PERSONA] on 15 January 2018, makes the following [OSCURATO:PERSONA] and procedure 1 By application lodged at the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] on 29 September 2017, an action was brought on behalf of the applicant, [OSCURATO:PERSONA] Corporation, by M. Edenborough QC, for the purposes of annulment of the decision of the [OSCURATO:PERSONA] of Appeal of EUIPO of 18 July 2017 ([OSCURATO:PERSONA] 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 [OSCURATO:PERSONA]. In the application, the applicant appeared to be a company governed by the laws of [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) with its registered address at ‘17500 [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA] 92614, [OSCURATO:PERSONA] of America’. 2 By letter of 4 October 2017, the [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] 177(7) of the Rules of Procedure of the [OSCURATO:PERSONA] and for the purposes of regularising the application, the following documents: –        a certificate of formation in respect of [OSCURATO:PERSONA] [OSCURATO:PERSONA], LLC (‘the surviving company’), signed by the Secretary of State of Delaware ([OSCURATO:PERSONA]) on 1 June 2017; –        the statutes of the surviving company dated 1 June 2017; –        the ‘Agreement and Plan of [OSCURATO:PERSONA]’ 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 [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 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 ([OSCURATO:PERSONA]) on 24 July 2017; and –        a power of attorney granted in favour of the aforementioned representative by the surviving company and signed by [OSCURATO:PERSONA], LLC, dated 10 October 2017. 4 By letter of 20 October 2017, the applicant’s representative also sent to the [OSCURATO:PERSONA] a [OSCURATO:PERSONA] (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 [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA]’ is ‘1301 [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA] 33323, [OSCURATO:PERSONA] of America’. 7 By document lodged at the [OSCURATO:PERSONA] on 15 January 2018, EUIPO raised a plea of inadmissibility pursuant to [OSCURATO:PERSONA] 130(1) of the Rules of Procedure. 8 By letter of 19 January 2018, the [OSCURATO:PERSONA] 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: ‘[OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] will not file any Observations on the EUIPO’s Plea of Inadmissibility pursuant to the letter from the [OSCURATO:PERSONA] dated 19 January 2018. Further, there is no need for the [OSCURATO:PERSONA] to trouble itself to rule upon the EUIPO’s Plea of Inadmissibility, but merely for the [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] 7(1)(b) or (c) of [OSCURATO:PERSONA] 207/2009; –        order EUIPO to pay the costs. 12 In the plea of inadmissibility, EUIPO contends that the [OSCURATO:PERSONA] should: –        dismiss the action as manifestly inadmissible; –        order the applicant to pay the costs. Law 13 [OSCURATO:PERSONA] 126 of the Rules of Procedure, where an action is manifestly inadmissible, the [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA], 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 [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] to verify whether the applicant has the capacity to bring or defend legal proceedings before the Courts of the [OSCURATO:PERSONA] (order of 28 February 2007, Pax v OHIM — [OSCURATO:PERSONA] , 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 [OSCURATO:PERSONA] Corporation, which, according to the wording of the application, was a company established in [OSCURATO:PERSONA], [OSCURATO:PERSONA] ([OSCURATO:PERSONA]). 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 [OSCURATO:PERSONA]’ 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 [[OSCURATO:PERSONA] Corporation] shall vest in the [OSCURATO:PERSONA], and all liabilities and obligations of [[OSCURATO:PERSONA] Corporation] shall become liabilities and obligations of the [OSCURATO:PERSONA]’ (‘the merger’). 19 In that ‘Agreement and Plan of [OSCURATO:PERSONA]’, first, it is stated, under the heading ‘Effective time’, that the merger was to become effective ‘upon the filing of the Certificate of [OSCURATO:PERSONA] with the office of the Secretary of State of the State of Delaware’ ([OSCURATO:PERSONA]), which occurred on 24 July 2017, but was to be effective with respect to [OSCURATO:PERSONA] Corporation ‘upon the filing of the Certificate of [OSCURATO:PERSONA] with the office of the Secretary of State of the State of [OSCURATO:PERSONA]’ ([OSCURATO:PERSONA]), which also occurred on 24 July 2017. [OSCURATO:PERSONA], it is stated, under the heading ‘[OSCURATO:PERSONA]’, 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 ([OSCURATO:PERSONA]) states that ‘[OSCURATO:PERSONA] Corporation’, the applicant, is the ‘disappearing entity’, in contrast to ‘[OSCURATO:PERSONA] [OSCURATO:PERSONA], 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 ‘[OSCURATO:PERSONA] Corporation’, but of ‘[OSCURATO:PERSONA] [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA], [OSCURATO:PERSONA] [OSCURATO:PERSONA], LLC’ is ‘[OSCURATO:PERSONA], [OSCURATO:PERSONA]’. It should be noted that it quite evident from the application that the applicant, named ‘[OSCURATO:PERSONA] Corporation’, was a company established under the laws of [OSCURATO:PERSONA], with an address in ‘[OSCURATO:PERSONA], [OSCURATO:PERSONA]’. In addition, the ‘Agreement and Plan of [OSCURATO:PERSONA]’ states that it was entered into by, inter alia, ‘[OSCURATO:PERSONA] Corporation, a [OSCURATO:PERSONA] corporation’. Similarly, the certificates of merger signed by the Secretaries of State of [OSCURATO:PERSONA] and Delaware designate [OSCURATO:PERSONA] respectively as the ‘Jurisdiction’ and ‘State of Formation’ of [OSCURATO:PERSONA] 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 ‘[OSCURATO:PERSONA] [OSCURATO:PERSONA], 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 [OSCURATO:PERSONA], 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 [OSCURATO:PERSONA]’ by its representative is [OSCURATO:PERSONA] Corporation, an entity without legal personality, which cannot bring or defend legal proceedings before the Courts of the [OSCURATO:PERSONA] and, consequently, is unable to discontinue any action, or [OSCURATO:PERSONA] [OSCURATO:PERSONA], 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 [OSCURATO:PERSONA] 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, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The action is dismissed. 2. [OSCURATO:PERSONA] Corporation shall pay the costs. Luxembourg, 17 April 2018. E. Coulon A.M. [OSCURATO:PERSONA] * Language of the case: English.