C-383/15

ORDER OF THE COURT (Second Chamber) 20 January 2016 (*) (Appeal — Community trade mark — No need to adjudicate) In Case C‑383/15 P, APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 15 July 2015, Skype Ultd, established in Dublin (Ireland), represented by A. Carboni and M. Browne, Solicitors, appellant, the other parties to the proceedings being: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by P. Bullock, acting as Agent, defendant at first instance, Sky plc, formerly British Sky Broadcasting Group plc, established in Isleworth (United Kingdom), Sky IP International Ltd, established in Isleworth, represented by D. Rose and J. Curry, Solicitors, interveners at first instance, THE COURT (Second Chamber), composed of M. Ilešič (Rapporteur), President of the Chamber, C. Toader, A. Rosas, A. Prechal and E. Jarašiūnas, Judges, Advocate General: M. Campos Sánchez-Bordona, Registrar: A. Calot Escobar, having regard to the written procedure, 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, Skype Ultd (‘Skype’) seeks to have set aside the judgment of the General Court of the European Union of 5 May 2015 in Skype v OHIM — Sky and Sky IP International (skype) (T‑423/12, EU:T:2015:260; ‘the judgment under appeal’), by which that court dismissed its action seeking the annulment of the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 26 July 2012 (Case R 1561/2010-4) concerning opposition proceedings between British Sky Broadcasting Group plc, now Sky plc, and Sky IP International Ltd (‘the Sky companies’), on the one hand, and Skype, on the other.  The background to the dispute, the judgment under appeal and the procedure before the Court of Justice 2        On 28 June 2005, the company of which Skype is the successor, by virtue of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), filed an application at OHIM for registration of the following figurative sign as a Community trade mark for services in Classes 9, 38 and 42 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        On 13 June 2006, the Sky companies brought opposition proceedings against the registration as a trade mark of the figurative sign at issue. 4        By decision of 6 July 2010, OHIM’s Opposition Division upheld the opposition. 5        On 11 August 2010, Skype filed an appeal against that decision. 6        By decision of 26 July 2012, the Fourth Board of Appeal dismissed the appeal. 7        By the judgment under appeal, the General Court dismissed the action brought by Skype against the latter decision and ordered Skype to pay the costs of the legal proceedings. 8        By its appeal, Skype seeks to have the judgment under appeal set aside and an order that OHIM and the Sky companies pay the costs in respect of the costs incurred by each of them and by Skype in this appeal and the costs incurred in the proceedings before the General Court, before the Fourth Board of Appeal of OHIM and before OHIM’s Opposition Division. 9        On 30 October 2015, Skype and the Sky companies, by a letter signed by their lawyers, informed the Court that, following an agreement in wider-ranging litigation between them, the Sky companies withdrew the opposition to the registration as a trade mark of the figurative sign at issue and that, in consequence, there was no longer any need to rule on the appeal. 10      By letter of 9 November 2015, OHIM stated that it did not have any observations in that regard and asked that Skype be ordered to pay the costs.  The appeal 11      It is not in dispute that the agreement reached by Skype and the Sky companies has led to the withdrawal by the Sky companies of the opposition proceedings which they had filed against the application made by Skype for registration and has the effect of ending the dispute concerning that opposition. 12      In those circumstances, it is clear that there is no need to rule on the present appeal.  Costs 13      Under Article 149 of the Rules of Procedure of the Court of Justice, which applies to appeals by virtue of Article 190 of those Rules, where a case does not proceed to judgment the costs shall be in the discretion of the Court. 14      In accordance with Articles 142 and 184(1) of those Rules, in that case, the order as to costs is to be made freely by the Court, subject, however, to the provisions of Article 184(2) to (4). 15      In the present case, there is no need to rule because of the agreement reached between Skype and the Sky companies. It follows therefrom that the appellant and the interveners at first instance are responsible for there being no need to rule. 16      The procedure before the Court involved a written part, in which, however, the interveners at first instance did not participate. In consequence, in accordance with Article 184(4) of the Rules of Procedure, those interveners may not be ordered to pay costs in the present proceedings. 17      Accordingly, it is appropriate to order the appellant to pay the costs of these proceedings. 18      The Court does not make an order as to costs at first instance since there has been no need to rule on the present appeal and, accordingly, the judgment under appeal has not been set aside. On those grounds, the Court (Second Chamber) hereby orders: 1.      There is no need to rule on the appeal. 2.      Skype Ultd shall pay the costs of the present proceedings. [Signatures] * Language of the case: English.