1

By its action under Article 263 TFEU, the applicant, Synapsa Med sp. z o.o., seeks annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 9 January 2023 (Case R 923/2022-5) (‘the contested decision’).

2

By letter of 6 February 2024, the applicant’s representative informed the Court that he was ceasing to represent it.

3

In the context of the measures of organisation of procedure provided for in Article 89 of its Rules of Procedure, the Court, by letter of 9 February 2024, informed the applicant’s representative that he would remain its interlocutor until the applicant appointed a new representative. The Court also invited the representative to inform the applicant that it was for the applicant, pursuant to Article 51(1) of the Rules of Procedure, to appoint a new representative. It added that, if it was not informed of that appointment by the applicant’s new representative by 26 February 2024 at the latest, it would consider making a declaration of its own motion that there was no longer any need to adjudicate, in accordance with Article 131(2) of the Rules of Procedure of the General Court.

4

The applicant did not appoint a new representative within the time limit.

5

By way of measures of organisation of procedure provided for in Article 89 of its Rules of Procedure, the Court, by letter of 7 March 2024, put a question to the parties to be answered in writing asking them to state whether the Court might declare of its own motion, by way of reasoned order, that there was no longer any need to adjudicate, pursuant to Article 131(2) of the Rules of Procedure.

6

By letter of 21 March 2024, the intervener, Gravity Brand Holdings LLC, replied in the affirmative to the Court’s question. It added that it would be appropriate for the Court to order the applicant to pay the costs.

7

By letter of 22 March 2024, EUIPO asked the Court to dismiss the action and not to order it to pay the costs. It also stated that it had not incurred any recoverable costs. In particular, EUIPO contends that a finding, pursuant to Article 131(2) of the Rules of Procedure, that there is no longer any need to adjudicate would have the consequence of preventing the contested decision from having effect under Article 71(3) of 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).

8

EUIPO maintains that the applicant’s obligation to be represented by a lawyer is a substantive rule of form, non-compliance with which renders the action before the Court inadmissible. Furthermore, according to EUIPO, where the Court finds, in the course of proceedings, that the applicant no longer complies with that rule, it is at liberty to interpret that fact either as a withdrawal under Article 125 of the Rules of Procedure, or as an impediment to the continuation of the proceedings with the result that it becomes manifestly bound to fail in accordance with Article 126 of the Rules of Procedure, or as an absolute bar to proceedings under Article 129 of the Rules of Procedure.

9

The applicant did not reply to the Court’s question within the time limit set.

10

Under Article 131(2) of the Rules of Procedure, if the applicant ceases to respond to the Court’s requests, the Court may, after hearing the parties, declare of its own motion, by way of reasoned order, that there is no longer any need to adjudicate.

11

Moreover, according to settled case-law, it is apparent from the third and fourth paragraphs of Article 19 and the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 of that Statute, and, in particular, from the use of the term ‘represented’ in the third paragraph of Article 19 of that Statute, that, in order to bring an action before the General Court, parties other than the Member States, the institutions of the European Union, States which are parties to the Agreement on the European Economic Area (EEA) other than the Member States and the European Free Trade Association (EFTA) Surveillance Authority referred to in that agreement are not authorised to act themselves but must use the services of a third party who must be authorised to practise before a court of a Member State or of another State which is a party to the EEA Agreement (see, to that effect, order of 20 November 2017, BikeWorld v Commission, T‑702/15, EU:T:2017:834, paragraph 31 and the case-law cited).

12

It also follows from Article 19 of the Statute of the Court of Justice of the European Union that the obligation to be represented by a lawyer must continue until service of the judicial decision bringing the proceedings to an end. However, that obligation must be compatible with, first, the freedom of a party to be represented by the lawyer of his or her choice and, secondly, the right of a lawyer, in compliance with his or her obligations under professional conduct rules, to decline to continue to act while proceedings are ongoing. Consequently, although a party does not have to be represented for the entire duration of the proceedings by the same lawyer, it must ensure continuity of representation by a lawyer for the entire duration of the proceedings, namely from the lodging of the action until service of the court decision bringing the proceedings to an end. As a result, where a lawyer ceases to represent an applicant in the course of proceedings, it is for that party to appoint, without delay, a new representative in order to ensure continuity of its representation (order of 19 June 2014, Suwaid v Council, T‑268/12, not published, EU:T:2014:598, paragraph 17).

13

In the present case, it is apparent from paragraphs 4 and 9 above that the applicant has not appointed a new representative and is no longer responding to the Court’s requests. By failing to respond to the Court’s requests to indicate the lawyer whom it had appointed as its new representative, the applicant failed, during the proceedings, to comply with the essential procedural obligation referred to in Article 19 of the Statute of the Court of Justice of the European Union.

14

However, contrary to what EUIPO contends, the applicant’s inaction in the present case cannot be construed either as a withdrawal under Article 125 of the Rules of Procedure, or as an impediment to the continuation of the proceedings rendering the action manifestly bound to fail under Article 126 of those rules, or as an absolute bar to proceedings under Article 129 of those rules.

15

First, with regard to EUIPO’s argument that the applicant’s inaction can be regarded as an act of withdrawal, it should be noted that, in order to be able to consider that there is a withdrawal, the applicant must demonstrate a real and externalised will to withdraw. The requirement that there be a genuine intention implies that there must be no doubt as to the existence of that intention. As to the external nature of the withdrawal, that means in particular that it cannot be implied (see, to that effect, order of 15 December 2022, Leonardo v Frontex, T‑675/20, not published, EU:T:2022:870, paragraph 22).

16

In the present case, the failure to appoint a new representative and to respond to the Court’s requests within the prescribed period is not sufficient to constitute a withdrawal, since it is not free from any doubt as to the applicant's intention to withdraw. Accordingly, it cannot be held that that inaction constitutes a withdrawal.

17

Secondly, as regards EUIPO’s argument that the applicant’s inaction constitutes a disruption of the proper conduct of the proceedings such that the action can be regarded as manifestly bound to fail, it should be borne in mind that, under Article 126 of the Rules of Procedure, where the action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may decide to give judgment by way of reasoned order without continuing the proceedings. Furthermore, the case-law shows that the admissibility of an action is assessed by reference to the situation at the time the application is lodged. If, at that time, the conditions for bringing the action are not satisfied, it is therefore inadmissible (judgment of 27 November 1984, Bensider and Others v Commission, 50/84, EU:C:1984:365, paragraph 8; see, to that effect, order of 6 July 2017, Yanukovych v Council, C‑505/16 P, EU:C:2017:525, paragraph 53).

18

In the present case, it must be observed that the condition for admissibility of the action relating to the applicant’s representation was duly satisfied at the time the application was lodged. The fact that the applicant did not appoint a new representative and no longer responded to the Court’s requests in the course of the proceedings was not such as to affect either the admissibility of the action at the time it was brought or its merits, and it cannot therefore be held that the present action is manifestly bound to fail.

19

Thirdly, with regard to EUIPO’s argument that the applicant’s failure to act constitutes a ground of inadmissibility which may be raised by the Court of its own motion under Article 129 of the Rules of Procedure, it is sufficient to point out that the applicant’s failure to act occurred in the course of the proceedings and is therefore not such as to affect the admissibility of the action at the time when it was brought. Moreover, failure to appoint a new representative in due and proper form may, according to the case-law, constitute sufficient evidence that the applicant no longer has an interest in bringing proceedings (see, to that effect, order of 12 September 2013, Yaqub v OHIM – Turkey (ATATURK), T‑580/12, not published, EU:T:2013:518, paragraph 7 and the case-law cited), it can lead only to a finding that there is no longer any need to adjudicate and not to a dismissal of the action as inadmissible.

20

Furthermore, in so far as EUIPO contends that a finding that there is no need to adjudicate in the present case would have the consequence that the contested decision would not take effect, it should be noted that the present case is distinguishable from those relied on by it and which gave rise to the orders of 12 April 2018, Cryo-Save v EUIPO (C‑327/17 P, not published, EU:C:2018:235); of 3 July 2003, Lichtwer Pharma v OHIM – Biofarma (Sedonium) (T‑10/01, EU:T:2003:182); of 26 November 2012, MIP Metro v OHIM – Real Seguros (real,- BIO) (T‑549/11, not published, EU:T:2012:622); of 4 July 2013, Just Music Fernsehbetriebs v OHIM – France Télécom (Jukebox) (T‑589/10, not published, EU:T:2013:356); of 23 February 2021, Frutas Tono v EUIPO – Agrocazalla (Marién) (T‑587/19, not published, EU:T:2021:107); and of 14 February 2023, Laboratorios Ern v EUIPO – Arrowhead Pharmaceuticals (TRiM) (T‑428/22, not published, EU:T:2023:80). Those cases concern cases in which, during the proceedings before the General Court or the Court of Justice, events occurred which either rendered the proceedings before EUIPO devoid of purpose by reason of the withdrawal of the opposition to the registration of the trade mark applied for or the withdrawal of the application for revocation of the contested trade mark, or had an effect on the validity of the earlier right or of the right which was the subject of the application for protection under the European Union trade mark system. Each of those events led the EU Courts to find, in essence, that the action had become devoid of purpose within the meaning of Article 113 or Article 114(1) of the Rules of Procedure of the General Court of 2 May 1991, Article 130(2) or Article 131(1) of the Rules of Procedure and that, pursuant to those provisions, there was no longer any need to adjudicate on the action.

21

It must be noted that neither of those situations arises in the present case. The intervener has not withdrawn its application for a declaration of invalidity of the applicant’s trade mark. Furthermore, there has been no event relating to the validity of the intervener’s earlier right in question. Thus, in the present case, the invalidity proceedings before EUIPO have retained their purpose. The contested decision, which declared the applicant’s trade mark invalid, did not lapse. Its effects were merely suspended pending the decision of the Court, before which the applicant brought an action.

22

The fact that the applicant ceased to respond to the requests of the Court, thereby waiving its right to defend its interests without, however, withdrawing its action, therefore has no effect on the proceedings before EUIPO and, consequently, on the subject matter of the action before the Court, but only on the conditions for further consideration of the action before the Court.

23

In that context, a finding by the Court that there is no need to adjudicate on the basis of Article 131(2) of the Rules of Procedure cannot prevent the contested decision from having effect.

24

In that regard, it should be noted that the sole purpose of the mechanism established by Article 71(3) of Regulation 2017/1001 is to ensure that the decisions of the Boards of Appeal do not produce effects pending the outcome of the court proceedings, in order to guarantee the parties affected by EUIPO’s decisions legal protection appropriate to the particular nature of trade mark law. There would be no point in registering a trade mark, then removing it from the register and, if necessary, re-registering it depending on the decisions handed down successively by EUIPO and the EU Courts. It follows that, while it is true that a finding that there is no need to adjudicate is not expressly mentioned in Article 71(3) of Regulation 2017/1001 as a term for the suspensive effect of actions brought against decisions of the Boards of Appeal, it must be held that, for the purposes of the application of that provision, a finding that there is no need to adjudicate on the basis of Article 131(2) of the Rules of Procedure must be treated as a dismissal of the action brought before the Court within the meaning of Article 71(3) of Regulation 2017/1001.

25

In the light of all the foregoing considerations, it is appropriate for the Court to declare of its own motion, pursuant to Article 131(2) of the Rules of Procedure, that there is no longer any need to adjudicate on the present action.

26

According to Article 137 of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the Court.

27

In the present case, the Court considers, in the light of the circumstances of the case, that the applicant should be ordered to bear its own costs and to pay those incurred by the intervener, EUIPO having informed the Court that it has not incurred any recoverable costs.

On those grounds,

THE GENERAL COURT (Second Chamber, Extended Composition)

hereby orders: