1

On 18 January 2017, the applicant for revision, 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 for revision 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 in so far as the latter had concluded that there was a likelihood of confusion in respect of certain of the goods covered by the mark applied for and upheld the decision of the Opposition Division in so far as the latter had concluded, in respect of the other goods, that there was a likelihood of confusion.

10

On 12 September 2019, the applicant for revision 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 for revision.

12

By letter of 27 July 2020, the applicant for revision 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 in Case T‑616/19, had withdrawn its opposition to the registration of the mark WONDERLAND.

13

By document lodged at the Court Registry on 18 September 2020, the applicant for revision made an application for revision under 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.

14

By document lodged at the Court Registry on 21 September 2020, the applicant for revision brought an appeal under Article 56 of the Statute of the Court of Justice of the European Union against the order of 10 July 2020, WONDERLAND (T‑616/19, not published, EU:T:2020:334).

15

By order of 12 November 2020, Katjes Fassin v EUIPO (C‑446/20 P, not published, EU:C:2020:910), the Court of Justice declared that the appeal was not allowed to proceed.

16

The applicant for revision claims that the Court should:

17

EUIPO contends that the Court should:

18

In support of its application for revision, the applicant for revision relies on the fact that the intervener in Case T‑616/19 withdrew its opposition to the 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 could have led the Court to a different determination of the proceedings had it been able to take it into consideration.

19

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.

20

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).

21

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.

22

In addition, in the light of the exceptional nature of the revision procedure, the conditions governing the admissibility of an application for revision of a judgment are to be interpreted strictly (order of 16 April 2012, de Brito Sequeira Carvalho v Commission, T‑40/07 P-REV and T‑62/07 P-REV, not published, EU:T:2012:182, paragraph 12; see, also, order of 4 December 2014, JAS v Commission, T‑573/11 REV, not published, EU:T:2014:1124, paragraph 23 and the case-law cited).

23

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.

24

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).

25

It is in the light of the considerations set out in paragraphs 19 to 24 above that the admissibility of the application for revision should be assessed.

26

First, EUIPO has confirmed in its observations on the application for revision that, by fax of 25 June 2020, the intervener in Case T‑616/19 informed it that it was withdrawing the opposition brought against the registration, sought by the applicant for revision, of the mark WONDERLAND.

27

Secondly, EUIPO does not dispute the claim of the applicant for revision that that fact was unknown to it. The intervener in Case T‑616/19 has not disputed that claim, either, as it has not submitted any observations on the application for revision.

28

It must be noted that, in the case of the withdrawal of an opposition to registration of a mark, the Guidelines for Examination in EUIPO of European Union trade marks and registered Community designs provide, in the part thereof on trade marks, Part C, Section 1, point 6.2.2.3, that ‘confirmation of the withdrawal is sent to the parties …’ and that ‘the database of [EUIPO] is updated accordingly to reflect the withdrawal of the opposition’. In that regard, EUIPO does not dispute that, on the date of service of the order of 10 July 2020, WONDERLAND (T‑616/19, not published, EU:T:2020:334), the information relating to the application for registration of the mark WONDERLAND had not been updated in the database concerned and that an indication of the withdrawal of the opposition had not therefore been included therein. Accordingly, as the applicant for revision submits, it could not know whether – and, if so, when – the intervener in Case T‑616/19 had actually informed EUIPO that it was withdrawing its opposition.

29

It must therefore be found that, as it had not been informed of the actual withdrawal of the opposition before service of the order of 10 July 2020, WONDERLAND (T‑616/19, not published, EU:T:2020:334), the applicant for revision was not in a position to know that fact on the date of service of that order.

30

Thirdly, in the light of the finding made in paragraph 29 above – which is not, moreover, disputed by EUIPO – it must be considered that the date on which the applicant for revision became aware of the fact on which the application for revision is based is subsequent to the service of the order of 10 July 2020, WONDERLAND (T‑616/19, not published, EU:T:2020:334), such that the application for revision of 18 September 2020 was made within three months of that date, as provided for in Article 169(2) of the Rules of Procedure.

31

Fourthly, EUIPO and the intervener did not notify the Court of the withdrawal of the opposition, either, meaning that that fact had been unknown to it when it made the order of 10 July 2020, WONDERLAND (T‑616/19, not published, EU:T:2020:334).

32

Fifthly, the fact which is of such a nature as to be a decisive factor, relied on by the applicant for revision, is the withdrawal of the opposition filed by the intervener in Case T‑616/19 against the registration of the mark WONDERLAND.

33

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).

34

Accordingly, the withdrawal of the opposition constitutes a 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 depends on it.

35

As the applicant for revision rightly notes, the withdrawal of an opposition based on Article 8(1) of Regulation 2017/1001 results in the relative ground for refusal laid down in that provision, on which the Board of Appeal based its decision, disappearing retroactively. Therefore, had the withdrawal of the opposition brought against registration of the mark WONDERLAND been known to the Court before the order of 10 July 2020, WONDERLAND (T‑616/19, not published, EU:T:2020:334) was made, it cannot be excluded that the Court would have been led not to adopt that order.

36

It follows that all the conditions laid down in Article 169 of the Rules of Procedure for the application for revision to be declared admissible are fulfilled.

37

That being said, it is necessary to examine the plea of inadmissibility raised by EUIPO, alleging that the applicant for revision has no interest in initiating the revision procedure. It contends that, if the application for revision is granted, it will not procure any advantage for the applicant for revision. It argues that, on account of the withdrawal of the opposition to the registration of the mark WONDERLAND, the order of 10 July 2020, WONDERLAND (T‑616/19, not published, EU:T:2020:334) is ineffective and that, under Article 51(1) of Regulation 2017/1001, there is no longer any obstacle to that registration.

38

In that regard, it must be recalled that, according to the case-law, an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which it will be inadmissible. That objective of the action must continue, like the interest in bringing proceedings, until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it (see judgment of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraph 42 and the case-law cited).

39

In the present case, it cannot be excluded that the applicant for revision has an interest in initiating the revision procedure in the context of the application for revision despite the fact that the action for annulment became devoid of purpose following the withdrawal of the opposition to the registration of the mark WONDERLAND.

40

As has been pointed out in paragraph 20 above, revision is not an appeal procedure but an exceptional review procedure.

41

Furthermore, as has been noted in paragraph 38 above, an applicant’s interest in bringing proceedings is determined on the basis of the purpose of the action in question. In that regard, it must be stated that the purpose of an exceptional review procedure such as revision is different from that of an action for annulment or an appeal, since an exceptional review procedure specifically seeks to call into question the force of res judicata of a judicial decision. Calling into question the force of res judicata of a decision unfavourable to the applicant seeking revision thereof is however sufficient to procure for the latter an advantage justifying its interest in initiating the revision procedure.

42

In the present case, the advantage that the applicant for revision seeks to obtain from the revision procedure is to call into question the force of res judicata of the order of 10 July 2020, WONDERLAND (T‑616/19, not published, EU:T:2020:334), which currently forms part of the legal order and which contains factual and legal considerations that are unfavourable to the applicant for revision. That advantage is sufficient to establish that the applicant for revision has an interest in initiating the revision procedure. In addition, it should be noted that, by the order of 10 July 2020, WONDERLAND (T‑616/19, not published, EU:T:2020:334), the applicant for revision was ordered to pay the costs and that any revision of that order could also procure for it an advantage as regards the allocation of costs.

43

Accordingly, the plea of inadmissibility raised by EUIPO, alleging that the applicant for revision has no interest in initiating the revision procedure owing to the alleged lack of effect of the order of 10 July 2020, WONDERLAND (T‑616/19, not published, EU:T:2020:334), must be rejected.

44

In that context, the order of 30 April 2020, Cyprus v EUIPO (C‑608/18 P, C‑609/18 P and C‑767/18 P, not published, EU:C:2020:347, paragraphs 31 to 33), on which EUIPO relies in support of the plea of inadmissibility alleging that the applicant for revision has no interest in initiating the revision procedure, confirms, on the contrary, that the applicant for revision does have an interest in making an application for revision of the order of 10 July 2020, WONDERLAND (T‑616/19, not published, EU:T:2020:334).

45

In the cases that gave rise to the order relied on by EUIPO – just as in, moreover, the majority of cases in which an action for annulment against a decision of EUIPO upholding the opposition to registration of a mark became devoid of purpose on account of the withdrawal of the opposition or the annulment of the earlier mark while the proceedings were still pending before the General Court or the Court of Justice – the proceedings were closed by an order that there was no need to adjudicate, namely a judicial decision which does not contain any factual or legal considerations that are unfavourable to one of the parties concerned.

46

Had the Court been in a position to determine the consequences of the withdrawal of the opposition made by the intervener in Case T‑616/19 while the proceedings before it were still pending, it could, if necessary, have made an order that there was no need to adjudicate in place of an order containing factual and legal considerations unfavourable to the applicant for revision. Since that was not the case here, the exceptional review procedure of revision is precisely the only procedure that allows the applicant for revision to seek from the Court a decision which, taking into consideration the withdrawal of the opposition, does not contain any factual and legal considerations that are unfavourable to it.

47

It must be added that the application for revision cannot be treated in the same way as a request for an opinion or a purely theoretical question, within the meaning of the judgment of 19 June 2009, Socratec v Commission (T‑269/03, not published, EU:T:2009:211, paragraph 38), which the applicant for revision would address to the Court. The applicant for revision is specifically asking the Court to call into question the force of res judicata of the order of 10 July 2020, WONDERLAND (T‑616/19, not published, EU:T:2020:334) by a revising decision which takes into account a potentially decisive fact which had not been brought to its attention. In that regard, it must be borne in mind that that order contains factual and legal considerations that are unfavourable to the applicant for revision and an order for costs against it and that it cannot be excluded that those considerations and that order for costs would not have been included in a decision of the Court had the fact of the withdrawal of the opposition been brought to its attention in good time.

48

In the light of all the foregoing, it must be held that the admissibility criteria provided for in Article 169(1) of the Rules of Procedure are fulfilled and that the applicant for revision has an interest in seeking revision of the order of 10 July 2020, WONDERLAND (T‑616/19, not published, EU:T:2020:334).

49

Accordingly, the application for revision must be declared admissible.

50

It is appropriate to reserve the costs pending final determination of the substance of the application for revision.

On those grounds,

THE GENERAL COURT (Second Chamber)

hereby orders: