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Corte di giustizia UEsentenza

Corte di giustizia UE n. 1893/2019

ECLI:EU:C:2019:581
Testo integrale del provvedimento

Testo integrale del provvedimento

[OSCURATO:PERSONA] ([OSCURATO:PERSONA])

10 July 2019 ( * ) (Appeal — [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] — EU trade mark — [OSCURATO:PERSONA] proceedings — Application for registration of the figurative mark containing the word element ‘Cheapflights’ — Rejection of the application for registration — Withdrawal of the appeal before the [OSCURATO:PERSONA] of Appeal — Effect on incidental submissions)

[OSCURATO:PERSONA] C–170/19 P,

APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 25 February 2019, CheapFlights [OSCURATO:PERSONA], established in Speenoge (Ireland), represented by A. von Mühlendahl and H. Hartwig, Rechtsanwälte, appellant, the other party to the proceedings being:

[OSCURATO:PERSONA] (EUIPO),

defendant at first instance,

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]),

composed of F. [OSCURATO:PERSONA], [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], C.G. Fernlund (Rapporteur) and L.S. Rossi, Judges,

[OSCURATO:PERSONA]: M. [OSCURATO:PERSONA][OSCURATO:PERSONA],

[OSCURATO:PERSONA]: A. [OSCURATO:PERSONA],

having decided, after hearing the [OSCURATO:PERSONA], to give a decision by reasoned order, in accordance with [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA], makes the following

[OSCURATO:PERSONA]

1 By its appeal, CheapFlights [OSCURATO:PERSONA] (‘CheapFlights’) asks the [OSCURATO:PERSONA] of Justice to set aside the order of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 11 December 2018, CheapFlights [OSCURATO:PERSONA] v EUIPO — [OSCURATO:PERSONA] (Cheapflights) (T‑565/17, ‘the order under appeal’, EU:T:2018:923) by which the [OSCURATO:PERSONA] (i) found that there was no longer any need to adjudicate on the action in so far as it was directed against the closure of the appeal proceedings by the decision of the [OSCURATO:PERSONA] of Appeal of the [OSCURATO:PERSONA] (EUIPO) of 1 June 2017 ([OSCURATO:PERSONA] R 1893/2011-G) concerning opposition proceedings between CheapFlights and [OSCURATO:PERSONA] (‘the decision at issue’), with regard to the goods and services in Classes 9, 16, 35 and 42 of the [OSCURATO:PERSONA] concerning the [OSCURATO:PERSONA] of Goods and Services for the Purposes of the Registration of [OSCURATO:PERSONA] of 15 June 1957, as revised and amended, in respect of which the [OSCURATO:PERSONA] of EUIPO had rejected the opposition filed by CheapFlights; and (ii) dismissed the action as inadmissible as to the remainder. 2 In support of its appeal, the appellant raises a single ground of appeal, alleging infringement of [OSCURATO:PERSONA] 8(3) of [OSCURATO:PERSONA] (EC) No 216/96 of 5 February 1996 laying down the rules of procedure of the Boards of Appeal of the [OSCURATO:PERSONA] for Harmonisation in the [OSCURATO:PERSONA] ([OSCURATO:PERSONA] and Designs) (OJ 1996 L 28, p. 11) in conjunction with [OSCURATO:PERSONA] 71(3) of [OSCURATO:PERSONA] (EU) 2017/1001 of the [OSCURATO:PERSONA] and of the Council of 14 June 2017 on the [OSCURATO:PERSONA] trade mark (OJ 2017 L 154, p. 1).

The appeal 3 Pursuant to [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA], where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the [OSCURATO:PERSONA] may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the [OSCURATO:PERSONA], decide by reasoned order to dismiss that appeal in whole or in part. 4 That provision must be applied in the present case. 5 On 15 May 2019, the [OSCURATO:PERSONA] took the following position: ‘2.

It is apparent from the order under appeal that CheapFlights had filed notice of opposition to registration of the mark Cheapflights applied for by [OSCURATO:PERSONA] for certain goods and services in Classes 9, 16, 35, 38, 39 and 41 to 44 of the [OSCURATO:PERSONA]. [OSCURATO:PERSONA] had rejected that opposition for the goods and services in Classes 9, 16 and 35 and for some of the services in Class 42 of that agreement.

By contrast, it had upheld that opposition for other services in Class 42 and for those in Classes 38, 39, 41, 43 and 44, which was contested by [OSCURATO:PERSONA] which filed an appeal, on 21 August 2007, before the [OSCURATO:PERSONA] of Appeal.

In the context of that appeal, CheapFlights put forward, in its response, incidental submissions as provided for in [OSCURATO:PERSONA] 8(3) of [OSCURATO:PERSONA] 216/96, seeking annulment of the decision of the [OSCURATO:PERSONA], in particular in so far as it had rejected the opposition in part.

3. Following the decision of 31 August 2009 of the [OSCURATO:PERSONA] of Appeal of EUIPO by which it upheld that appeal, a decision which was annulled by the [OSCURATO:PERSONA] by its judgment of 5 May 2011, CheapFlights [OSCURATO:PERSONA] v OHIM — Cheapflights (Cheapflights) (T‑460/09, not published, EU:T:2011:198) in which it was held that there was a likelihood of confusion, the Presidium of the Boards of Appeal of OHIM, by the decision at issue, remitted the case to the [OSCURATO:PERSONA] of Appeal for further decision.

4. After having referred the application for registration of the mark Cheapflights to the EUIPO examiner for examination in the light of the absolute grounds for refusal, the [OSCURATO:PERSONA] of Appeal concluded that the opposition and the appeal proceedings had become devoid of purpose and were therefore to be closed. [OSCURATO:PERSONA] of Appeal came to that conclusion having inferred from the examiner’s re-examination of the absolute grounds for refusal that the application for registration of the trade mark Cheapflights had been rejected for all of the services in respect of which the [OSCURATO:PERSONA] had upheld the opposition, namely some of the services in Class 42 and those in Classes 38, 39, 41, 43 and 44 of the [OSCURATO:PERSONA].

5. CheapFlights therefore brought an action before the [OSCURATO:PERSONA] seeking annulment of the decision at issue.

By the order under appeal, the [OSCURATO:PERSONA] held, first, that there was no longer any need to adjudicate on that action in so far as it was directed against the closure of the appeal proceedings by EUIPO with regard to the goods and services in Classes 9, 16, 35 and 42 of the [OSCURATO:PERSONA] and in respect of which the [OSCURATO:PERSONA] had rejected CheapFlights’ opposition.

In that regard, it held, in particular, that, by reason of the withdrawal by [OSCURATO:PERSONA] of its appeal of 21 August 2007, CheapFlights’ action was no longer capable of procuring, by its outcome, any advantage for CheapFlights which therefore no longer had any interest in bringing proceedings.

Secondly, the [OSCURATO:PERSONA] declared that action inadmissible as to the remainder.

6. In support of its appeal, CheapFlights puts forward a single ground of appeal, alleging infringement by the [OSCURATO:PERSONA], in paragraphs 62 to 64 of the order under appeal, of [OSCURATO:PERSONA] 8(3) of [OSCURATO:PERSONA] 216/96, read in conjunction with [OSCURATO:PERSONA] 71(3) of [OSCURATO:PERSONA] 2017/1001.

7. CheapFlights maintains, in essence, that the [OSCURATO:PERSONA] erred in law by considering that [OSCURATO:PERSONA] could withdraw its appeal before EUIPO even though the [OSCURATO:PERSONA] was dealing with an action for annulment in the case which gave rise to the order under appeal.

However, it should be noted that the appellant itself stated that [OSCURATO:PERSONA] appeal before EUIPO, on the one hand, and its own incidental submissions, on the other hand, had different objectives, so that the latter constituted an independent appeal, different from that brought by [OSCURATO:PERSONA]. [OSCURATO:PERSONA], [OSCURATO:PERSONA] main appeal concerned the goods and services in Classes 38, 39 and 41 and, in part, those in Classes 42, 43 and 44 of the [OSCURATO:PERSONA], whereas the action brought by the appellant related to goods and services in Classes 9, 16, and 35, and, in part, to those in Class 42 of that agreement.

8. On the basis of that premiss, CheapFlights submits that [OSCURATO:PERSONA] could have withdrawn its appeal filed before EUIPO on 21 August 2007 at any time, even before the [OSCURATO:PERSONA] of Appeal adopted the decision at issue, dated 1 June 2017, by which it concluded that the opposition proceedings and the appeal proceedings had become devoid of purpose and were therefore to be closed.

In that regard, the appellant submits that [OSCURATO:PERSONA] could also have withdrawn its appeal within 2 months of the notification of that decision, pursuant to [OSCURATO:PERSONA] 71(3) of [OSCURATO:PERSONA] 2017/1001, which provides that the decisions of the Boards of Appeal are to take effect only as from the date of expiry of the period referred to in [OSCURATO:PERSONA] 72(5) of that regulation or, if an action has been brought before the [OSCURATO:PERSONA] within that period, as from the date of dismissal of such action or of any appeal filed with the [OSCURATO:PERSONA] of Justice against the decision of the [OSCURATO:PERSONA].

9. Unlike CheapFlights, [OSCURATO:PERSONA] did not bring an action before the [OSCURATO:PERSONA] against the decision at issue, with the effect, according to the appellant, that its own action was not such as to suspend the appeal brought by [OSCURATO:PERSONA] before EUIPO, since [OSCURATO:PERSONA] appeal was directed against goods and services other than those covered by CheapFlights’ own action.

In so far as there were two different actions, [OSCURATO:PERSONA], according to the appellant, no longer had a right to intervene, in any way, in the proceedings before the [OSCURATO:PERSONA], given that the decision at issue had become final in respect of [OSCURATO:PERSONA].

Consequently, CheapFlights claims that the [OSCURATO:PERSONA] erred in law when it considered that CheapFlights’ action for annulment against the decision at issue had suspended the application of that decision so that it was still possible for [OSCURATO:PERSONA] to withdraw its appeal before the [OSCURATO:PERSONA] of Appeal.

10. For the reasons stated below, I propose that the [OSCURATO:PERSONA] should, in accordance with [OSCURATO:PERSONA] 181 of the Rules of Procedure, dismiss the appeal as manifestly unfounded.

11. First of all, it should be borne in mind that it is settled case-law that a withdrawal of the opposition filed against an application for registration has the effect of putting an end to the dispute concerning the partial rejection of that application (order of 18 September 2012, Omnicare v

OHIM

, C‑587/11 P, not published, EU:C:2012:575, paragraph 11 and the case-law cited; see, by analogy, as regards invalidity proceedings, order of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of Justice of 21 July 2016,

[OSCURATO:PERSONA]

v

EUIPO

, C‑363/15 P and C‑364/15 P, not published, EU:C:2016:595, paragraph 7). That case-law must therefore be applied in the present case.

12. In the first place, it should be pointed out, as is apparent from the case file and, in particular, paragraph 49 of the order under appeal, that the appellant set out incidental submissions in its response during the initial proceedings before the [OSCURATO:PERSONA] of Appeal under [OSCURATO:PERSONA] 8(3) of [OSCURATO:PERSONA] 216/96.

The meaning of that provision is perfectly clear in that it enables, in inter partes proceedings, such as those at issue here, the defendant, in its response, to seek a decision annulling or altering the contested decision on a point not raised in the appeal, while providing that, should the appellant before the [OSCURATO:PERSONA] of Appeal discontinue the proceedings, those submissions would necessarily cease to have effect.

13. In the second place, it should be noted that, in the light of [OSCURATO:PERSONA] 67 of [OSCURATO:PERSONA] 2017/1001, any party to proceedings adversely affected by a decision may appeal.

Consequently, in the system of legal remedies laid down by that regulation, a party, like CheapFlights, whose opposition has been rejected in part, can file an appeal against the decision of partial rejection.

In such a case, the appeal will be independent in relation to any other appeal filed by another party to the proceedings that culminated in the contested decision.

Thus, discontinuance of the proceedings by the party who brought the action before the [OSCURATO:PERSONA] of Appeal will not result in the appeal lodged by another party to the proceedings becoming devoid of purpose.

14. It follows from the foregoing that, where the claims of a party to opposition proceedings, such as CheapFlights, have been rejected in part, that party can either file an (independent) appeal against the decision of the [OSCURATO:PERSONA], in accordance with Articles 66 and 67 of [OSCURATO:PERSONA] 2017/1001, or make incidental submissions seeking annulment or alteration of that decision on a point not raised in that appeal, as provided for in [OSCURATO:PERSONA] 8(3) of [OSCURATO:PERSONA] 216/96.

15. It is apparent from that system of legal remedies that it is for the respondent in appeal proceedings to determine whether it favours an independent legal remedy or will merely make incidental submissions.

In the latter case, its capacity to take part in legal proceedings is inextricably linked to the intentions of the party who brought the action before the [OSCURATO:PERSONA] of Appeal, in the event of discontinuance of the proceedings.

By contrast, contrary to what the appellant appears to argue, it cannot be inferred, either from the provisions mentioned above or those of the regulations cited, that the independent or incidental nature of an action brought or presented by a party during proceedings is to be inferred from the content of the submissions presented by that party.

16. It follows that the appellant’s argument that the incidental submissions which it presented to the [OSCURATO:PERSONA] of Appeal in response to the appeal lodged by [OSCURATO:PERSONA] constituted, by their very nature, an independent appeal must be dismissed as manifestly unfounded.

17. In those circumstances, the action brought before the [OSCURATO:PERSONA] by CheapFlights against the decision at issue was necessarily linked, procedurally, to [OSCURATO:PERSONA] appeal against the decision of the [OSCURATO:PERSONA], in so far as the [OSCURATO:PERSONA] of Appeal had ruled on the [OSCURATO:PERSONA] decision as is apparent from paragraphs 6 and 14 of the decision at issue.

Furthermore, under [OSCURATO:PERSONA] 71(3) of [OSCURATO:PERSONA] 2017/1001, an appeal, brought within the prescribed periods, leads to the suspension of the taking effect of decisions of the [OSCURATO:PERSONA] of Appeal.

18. It must therefore be held, in the light of the case-law referred to in paragraph 11 of the present position, that the [OSCURATO:PERSONA] did not err in law in finding, in paragraphs 62 to 64 of the order under appeal, that it was possible for [OSCURATO:PERSONA] to withdraw its appeal of 21 August 2007 before the [OSCURATO:PERSONA] of Appeal and, in paragraph 66 of that order, that such a withdrawal meant, as a result, that the [OSCURATO:PERSONA] of Appeal was no longer required to rule on the incidental submissions presented by CheapFlights.

Moreover, it should be observed that, since [OSCURATO:PERSONA] 8(3) of [OSCURATO:PERSONA] 216/96 does not vary the effects of discontinuance depending on the underlying reason for it, that article does not have any bearing on the outcome of the appeal.

19. [OSCURATO:PERSONA] was therefore right to conclude, in paragraph 69 of the order under appeal, that the action brought before it by CheapFlights had become devoid of purpose and that there was therefore no longer any need to adjudicate on it.

As a result, the [OSCURATO:PERSONA] did not commit any error of law, contrary to what was alleged by the appellant.

20. In the light of all of the foregoing considerations, it is necessary to reject the single ground of appeal and, consequently, the appeal in its entirety as being manifestly unfounded, and to order the appellant to pay the costs, in accordance with [OSCURATO:PERSONA] 137 and [OSCURATO:PERSONA] 184(1) of the Rules of Procedure.’ 6 For the same reasons as those given by the [OSCURATO:PERSONA], the appeal must be dismissed as being manifestly unfounded.

Costs 7 [OSCURATO:PERSONA] 137 of the Rules of Procedure, applicable to the procedure on appeal pursuant to [OSCURATO:PERSONA] 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings.

In this case, since the present order has been made before the appeal has been served on the respondent, and therefore before the latter could have incurred costs, CheapFlights must be ordered to bear its own costs.

On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders:

1. The appeal is dismissed as being manifestly unfounded.

2. CheapFlights [OSCURATO:PERSONA] shall bear its own costs.

Luxembourg, 10 July 2019.

A. [OSCURATO:PERSONA]

F. [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] * Language of the case: English.

Anonimizzato ex art. 52 D.Lgs. 196/2003
[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 10 July 2019 ( * ) (Appeal — [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] — EU trade mark — [OSCURATO:PERSONA] proceedings — Application for registration of the figurative mark containing the word element ‘Cheapflights’ — Rejection of the application for registration — Withdrawal of the appeal before the [OSCURATO:PERSONA] of Appeal — Effect on incidental submissions) [OSCURATO:PERSONA] C–170/19 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 25 February 2019, CheapFlights [OSCURATO:PERSONA], established in Speenoge (Ireland), represented by A. von Mühlendahl and H. Hartwig, Rechtsanwälte, appellant, the other party to the proceedings being: [OSCURATO:PERSONA] (EUIPO), defendant at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of F. [OSCURATO:PERSONA], [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], C.G. Fernlund (Rapporteur) and L.S. Rossi, Judges, [OSCURATO:PERSONA]: M. [OSCURATO:PERSONA][OSCURATO:PERSONA], [OSCURATO:PERSONA]: A. [OSCURATO:PERSONA], having decided, after hearing the [OSCURATO:PERSONA], to give a decision by reasoned order, in accordance with [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA], makes the following [OSCURATO:PERSONA] 1 By its appeal, CheapFlights [OSCURATO:PERSONA] (‘CheapFlights’) asks the [OSCURATO:PERSONA] of Justice to set aside the order of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 11 December 2018, CheapFlights [OSCURATO:PERSONA] v EUIPO — [OSCURATO:PERSONA] (Cheapflights) (T‑565/17, ‘the order under appeal’, EU:T:2018:923) by which the [OSCURATO:PERSONA] (i) found that there was no longer any need to adjudicate on the action in so far as it was directed against the closure of the appeal proceedings by the decision of the [OSCURATO:PERSONA] of Appeal of the [OSCURATO:PERSONA] (EUIPO) of 1 June 2017 ([OSCURATO:PERSONA] R 1893/2011-G) concerning opposition proceedings between CheapFlights and [OSCURATO:PERSONA] (‘the decision at issue’), with regard to the goods and services in Classes 9, 16, 35 and 42 of the [OSCURATO:PERSONA] concerning the [OSCURATO:PERSONA] of Goods and Services for the Purposes of the Registration of [OSCURATO:PERSONA] of 15 June 1957, as revised and amended, in respect of which the [OSCURATO:PERSONA] of EUIPO had rejected the opposition filed by CheapFlights; and (ii) dismissed the action as inadmissible as to the remainder. 2 In support of its appeal, the appellant raises a single ground of appeal, alleging infringement of [OSCURATO:PERSONA] 8(3) of [OSCURATO:PERSONA] (EC) No 216/96 of 5 February 1996 laying down the rules of procedure of the Boards of Appeal of the [OSCURATO:PERSONA] for Harmonisation in the [OSCURATO:PERSONA] ([OSCURATO:PERSONA] and Designs) (OJ 1996 L 28, p. 11) in conjunction with [OSCURATO:PERSONA] 71(3) of [OSCURATO:PERSONA] (EU) 2017/1001 of the [OSCURATO:PERSONA] and of the Council of 14 June 2017 on the [OSCURATO:PERSONA] trade mark (OJ 2017 L 154, p. 1). The appeal 3 Pursuant to [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA], where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the [OSCURATO:PERSONA] may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the [OSCURATO:PERSONA], decide by reasoned order to dismiss that appeal in whole or in part. 4 That provision must be applied in the present case. 5 On 15 May 2019, the [OSCURATO:PERSONA] took the following position: ‘2.      It is apparent from the order under appeal that CheapFlights had filed notice of opposition to registration of the mark Cheapflights applied for by [OSCURATO:PERSONA] for certain goods and services in Classes 9, 16, 35, 38, 39 and 41 to 44 of the [OSCURATO:PERSONA]. [OSCURATO:PERSONA] had rejected that opposition for the goods and services in Classes 9, 16 and 35 and for some of the services in Class 42 of that agreement. By contrast, it had upheld that opposition for other services in Class 42 and for those in Classes 38, 39, 41, 43 and 44, which was contested by [OSCURATO:PERSONA] which filed an appeal, on 21 August 2007, before the [OSCURATO:PERSONA] of Appeal. In the context of that appeal, CheapFlights put forward, in its response, incidental submissions as provided for in [OSCURATO:PERSONA] 8(3) of [OSCURATO:PERSONA] 216/96, seeking annulment of the decision of the [OSCURATO:PERSONA], in particular in so far as it had rejected the opposition in part. 3.      Following the decision of 31 August 2009 of the [OSCURATO:PERSONA] of Appeal of EUIPO by which it upheld that appeal, a decision which was annulled by the [OSCURATO:PERSONA] by its judgment of 5 May 2011, CheapFlights [OSCURATO:PERSONA] v OHIM — Cheapflights (Cheapflights) (T‑460/09, not published, EU:T:2011:198) in which it was held that there was a likelihood of confusion, the Presidium of the Boards of Appeal of OHIM, by the decision at issue, remitted the case to the [OSCURATO:PERSONA] of Appeal for further decision. 4.      After having referred the application for registration of the mark Cheapflights to the EUIPO examiner for examination in the light of the absolute grounds for refusal, the [OSCURATO:PERSONA] of Appeal concluded that the opposition and the appeal proceedings had become devoid of purpose and were therefore to be closed. [OSCURATO:PERSONA] of Appeal came to that conclusion having inferred from the examiner’s re-examination of the absolute grounds for refusal that the application for registration of the trade mark Cheapflights had been rejected for all of the services in respect of which the [OSCURATO:PERSONA] had upheld the opposition, namely some of the services in Class 42 and those in Classes 38, 39, 41, 43 and 44 of the [OSCURATO:PERSONA]. 5.      CheapFlights therefore brought an action before the [OSCURATO:PERSONA] seeking annulment of the decision at issue. By the order under appeal, the [OSCURATO:PERSONA] held, first, that there was no longer any need to adjudicate on that action in so far as it was directed against the closure of the appeal proceedings by EUIPO with regard to the goods and services in Classes 9, 16, 35 and 42 of the [OSCURATO:PERSONA] and in respect of which the [OSCURATO:PERSONA] had rejected CheapFlights’ opposition. In that regard, it held, in particular, that, by reason of the withdrawal by [OSCURATO:PERSONA] of its appeal of 21 August 2007, CheapFlights’ action was no longer capable of procuring, by its outcome, any advantage for CheapFlights which therefore no longer had any interest in bringing proceedings. Secondly, the [OSCURATO:PERSONA] declared that action inadmissible as to the remainder. 6.      In support of its appeal, CheapFlights puts forward a single ground of appeal, alleging infringement by the [OSCURATO:PERSONA], in paragraphs 62 to 64 of the order under appeal, of [OSCURATO:PERSONA] 8(3) of [OSCURATO:PERSONA] 216/96, read in conjunction with [OSCURATO:PERSONA] 71(3) of [OSCURATO:PERSONA] 2017/1001. 7.      CheapFlights maintains, in essence, that the [OSCURATO:PERSONA] erred in law by considering that [OSCURATO:PERSONA] could withdraw its appeal before EUIPO even though the [OSCURATO:PERSONA] was dealing with an action for annulment in the case which gave rise to the order under appeal. However, it should be noted that the appellant itself stated that [OSCURATO:PERSONA] appeal before EUIPO, on the one hand, and its own incidental submissions, on the other hand, had different objectives, so that the latter constituted an independent appeal, different from that brought by [OSCURATO:PERSONA]. [OSCURATO:PERSONA], [OSCURATO:PERSONA] main appeal concerned the goods and services in Classes 38, 39 and 41 and, in part, those in Classes 42, 43 and 44 of the [OSCURATO:PERSONA], whereas the action brought by the appellant related to goods and services in Classes 9, 16, and 35, and, in part, to those in Class 42 of that agreement. 8.      On the basis of that premiss, CheapFlights submits that [OSCURATO:PERSONA] could have withdrawn its appeal filed before EUIPO on 21 August 2007 at any time, even before the [OSCURATO:PERSONA] of Appeal adopted the decision at issue, dated 1 June 2017, by which it concluded that the opposition proceedings and the appeal proceedings had become devoid of purpose and were therefore to be closed. In that regard, the appellant submits that [OSCURATO:PERSONA] could also have withdrawn its appeal within 2 months of the notification of that decision, pursuant to [OSCURATO:PERSONA] 71(3) of [OSCURATO:PERSONA] 2017/1001, which provides that the decisions of the Boards of Appeal are to take effect only as from the date of expiry of the period referred to in [OSCURATO:PERSONA] 72(5) of that regulation or, if an action has been brought before the [OSCURATO:PERSONA] within that period, as from the date of dismissal of such action or of any appeal filed with the [OSCURATO:PERSONA] of Justice against the decision of the [OSCURATO:PERSONA]. 9.      Unlike CheapFlights, [OSCURATO:PERSONA] did not bring an action before the [OSCURATO:PERSONA] against the decision at issue, with the effect, according to the appellant, that its own action was not such as to suspend the appeal brought by [OSCURATO:PERSONA] before EUIPO, since [OSCURATO:PERSONA] appeal was directed against goods and services other than those covered by CheapFlights’ own action. In so far as there were two different actions, [OSCURATO:PERSONA], according to the appellant, no longer had a right to intervene, in any way, in the proceedings before the [OSCURATO:PERSONA], given that the decision at issue had become final in respect of [OSCURATO:PERSONA]. Consequently, CheapFlights claims that the [OSCURATO:PERSONA] erred in law when it considered that CheapFlights’ action for annulment against the decision at issue had suspended the application of that decision so that it was still possible for [OSCURATO:PERSONA] to withdraw its appeal before the [OSCURATO:PERSONA] of Appeal. 10.      For the reasons stated below, I propose that the [OSCURATO:PERSONA] should, in accordance with [OSCURATO:PERSONA] 181 of the Rules of Procedure, dismiss the appeal as manifestly unfounded. 11.      First of all, it should be borne in mind that it is settled case-law that a withdrawal of the opposition filed against an application for registration has the effect of putting an end to the dispute concerning the partial rejection of that application (order of 18 September 2012, Omnicare v OHIM , C‑587/11 P, not published, EU:C:2012:575, paragraph 11 and the case-law cited; see, by analogy, as regards invalidity proceedings, order of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of Justice of 21 July 2016, [OSCURATO:PERSONA] v EUIPO , C‑363/15 P and C‑364/15 P, not published, EU:C:2016:595, paragraph 7). That case-law must therefore be applied in the present case. 12.      In the first place, it should be pointed out, as is apparent from the case file and, in particular, paragraph 49 of the order under appeal, that the appellant set out incidental submissions in its response during the initial proceedings before the [OSCURATO:PERSONA] of Appeal under [OSCURATO:PERSONA] 8(3) of [OSCURATO:PERSONA] 216/96. The meaning of that provision is perfectly clear in that it enables, in inter partes proceedings, such as those at issue here, the defendant, in its response, to seek a decision annulling or altering the contested decision on a point not raised in the appeal, while providing that, should the appellant before the [OSCURATO:PERSONA] of Appeal discontinue the proceedings, those submissions would necessarily cease to have effect. 13.      In the second place, it should be noted that, in the light of [OSCURATO:PERSONA] 67 of [OSCURATO:PERSONA] 2017/1001, any party to proceedings adversely affected by a decision may appeal. Consequently, in the system of legal remedies laid down by that regulation, a party, like CheapFlights, whose opposition has been rejected in part, can file an appeal against the decision of partial rejection. In such a case, the appeal will be independent in relation to any other appeal filed by another party to the proceedings that culminated in the contested decision. Thus, discontinuance of the proceedings by the party who brought the action before the [OSCURATO:PERSONA] of Appeal will not result in the appeal lodged by another party to the proceedings becoming devoid of purpose. 14.      It follows from the foregoing that, where the claims of a party to opposition proceedings, such as CheapFlights, have been rejected in part, that party can either file an (independent) appeal against the decision of the [OSCURATO:PERSONA], in accordance with Articles 66 and 67 of [OSCURATO:PERSONA] 2017/1001, or make incidental submissions seeking annulment or alteration of that decision on a point not raised in that appeal, as provided for in [OSCURATO:PERSONA] 8(3) of [OSCURATO:PERSONA] 216/96. 15.      It is apparent from that system of legal remedies that it is for the respondent in appeal proceedings to determine whether it favours an independent legal remedy or will merely make incidental submissions. In the latter case, its capacity to take part in legal proceedings is inextricably linked to the intentions of the party who brought the action before the [OSCURATO:PERSONA] of Appeal, in the event of discontinuance of the proceedings. By contrast, contrary to what the appellant appears to argue, it cannot be inferred, either from the provisions mentioned above or those of the regulations cited, that the independent or incidental nature of an action brought or presented by a party during proceedings is to be inferred from the content of the submissions presented by that party. 16.      It follows that the appellant’s argument that the incidental submissions which it presented to the [OSCURATO:PERSONA] of Appeal in response to the appeal lodged by [OSCURATO:PERSONA] constituted, by their very nature, an independent appeal must be dismissed as manifestly unfounded. 17.      In those circumstances, the action brought before the [OSCURATO:PERSONA] by CheapFlights against the decision at issue was necessarily linked, procedurally, to [OSCURATO:PERSONA] appeal against the decision of the [OSCURATO:PERSONA], in so far as the [OSCURATO:PERSONA] of Appeal had ruled on the [OSCURATO:PERSONA] decision as is apparent from paragraphs 6 and 14 of the decision at issue. Furthermore, under [OSCURATO:PERSONA] 71(3) of [OSCURATO:PERSONA] 2017/1001, an appeal, brought within the prescribed periods, leads to the suspension of the taking effect of decisions of the [OSCURATO:PERSONA] of Appeal. 18.      It must therefore be held, in the light of the case-law referred to in paragraph 11 of the present position, that the [OSCURATO:PERSONA] did not err in law in finding, in paragraphs 62 to 64 of the order under appeal, that it was possible for [OSCURATO:PERSONA] to withdraw its appeal of 21 August 2007 before the [OSCURATO:PERSONA] of Appeal and, in paragraph 66 of that order, that such a withdrawal meant, as a result, that the [OSCURATO:PERSONA] of Appeal was no longer required to rule on the incidental submissions presented by CheapFlights. Moreover, it should be observed that, since [OSCURATO:PERSONA] 8(3) of [OSCURATO:PERSONA] 216/96 does not vary the effects of discontinuance depending on the underlying reason for it, that article does not have any bearing on the outcome of the appeal. 19.      [OSCURATO:PERSONA] was therefore right to conclude, in paragraph 69 of the order under appeal, that the action brought before it by CheapFlights had become devoid of purpose and that there was therefore no longer any need to adjudicate on it. As a result, the [OSCURATO:PERSONA] did not commit any error of law, contrary to what was alleged by the appellant. 20.      In the light of all of the foregoing considerations, it is necessary to reject the single ground of appeal and, consequently, the appeal in its entirety as being manifestly unfounded, and to order the appellant to pay the costs, in accordance with [OSCURATO:PERSONA] 137 and [OSCURATO:PERSONA] 184(1) of the Rules of Procedure.’ 6 For the same reasons as those given by the [OSCURATO:PERSONA], the appeal must be dismissed as being manifestly unfounded. Costs 7 [OSCURATO:PERSONA] 137 of the Rules of Procedure, applicable to the procedure on appeal pursuant to [OSCURATO:PERSONA] 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. In this case, since the present order has been made before the appeal has been served on the respondent, and therefore before the latter could have incurred costs, CheapFlights must be ordered to bear its own costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The appeal is dismissed as being manifestly unfounded. 2. CheapFlights [OSCURATO:PERSONA] shall bear its own costs. Luxembourg, 10 July 2019. A. [OSCURATO:PERSONA] F. [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] * Language of the case: English.
Sentenza Corte di giustizia UE n. 1893/2019 — Fons Iuris — Fons Iuris