ORDER OF THE GENERAL COURT (First Chamber)

14 November 2011 (1)

(Community trade mark – Partial refusal to register – Withdrawal of the application for registration – No need to adjudicate)

In Case T-448/10,

Apple, Inc., established in California (United States), represented by
M. Engelman, Barrister and J. Olsen Solicitor,

applicant,

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by D. Botis, acting as Agent,

defendant,

the other party to the proceedings before the Board of Appeal of OHIM being

Iphone Media, SA, established in Seville (Spain),

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 21 July 2010 (Case R 1084/2009-4), relating to opposition proceedings between Apple, Inc. and Iphone Media, SA,

THE GENERAL COURT (First Chamber),

composed of J. Azizi, President, E. Cremona (Rapporteur), S. Frimodt Nielsen, Judges,

Registrar: E. Coulon,

makes the following

Order

1        By letter lodged at the Registry of the Court on 5 October 2011, the applicant informed the Court that the other party to the proceedings before the Board of Appeal of OHIM, Iphone Media, SA, had requested the withdrawal of its application for registration of the contested trade mark. The applicant stated also that, in its view, there was no longer any need for the Court to adjudicate on the present action and that “the parties have agreed that each party will bear its own costs in these proceedings”.

2        By letter lodged at the Registry of the Court on 14 October 2011, the defendant informed the Court that it raised no objection to the case being declared devoid of purpose and requested that the applicant be ordered to bear the costs.

3        Pursuant to Article 113 of the Rules of Procedure of the Court, it suffices in the present case to find that, in the light of the withdrawal of the application for registration, the present action has become devoid of purpose. There is therefore no longer any need to adjudicate on it (order in Case T‑10/01 Lichtwer Pharma v OHIMBiofarma (Sedonium) [2003] ECR II‑2225, paragraphs 16 to 18).

4        Article 87(6) of the Rules of Procedure provides that, where a case does not proceed to judgment, the costs are in the discretion of the Court.

5        In the present case, it must be pointed out that the decision not to proceed to judgment is the result of the withdrawal by the other party to the proceedings before the Board of Appeal of OHIM of its contested trade mark application, and that this party has not participated in the proceedings before the Court. It follows also from the file that the “agreement” as to the costs to which the applicant refers in its letter of 5 October 2011, is an agreement which was concluded between the applicant and the other party to the proceedings before the Board of Appeal of OHIM and not between the applicant and the defendant. Taking into account these circumstances, the Court considers that the applicant must be ordered to bear its own costs and those incurred by the defendant.

On those grounds,

THE GENERAL COURT (First Chamber)

hereby orders:

1.      There is no need to adjudicate on the action.

2.      The applicant shall bear its own costs and those incurred by the defendant.

Luxembourg, 14 November 2011.

E. Coulon

        J. Azizi

Registrar

       Preside