DECISION

of the Second Board of Appeal

of 14 November 2019

In case R 205/2019-2

Yggdrasil Malta Limited
Level 2, Tagliaferro Business Centre, High Street, c/w Gaiety Lane Sliema SLM 1551 Malta	Applicant / Appellant

represented by VALEA AB, Lilla Bommen 3a, SE-405 23 Göteborg, Sweden

v

IGT UK Interactive Limited
3rd Floor 10 Finsbury Square London EC2A 1AF United Kingdom	Opponent / Defendant

represented by Armin Herlitz, Seering 13-14, 8141 Premstätten, Austria

APPEAL relating to Opposition Proceedings No B 3 001 859 (European Union trade mark application No 17 124 116)

The Second Board of Appeal

composed of H. Salmi as a single Member having regard to Article 165(2) and (5) EUTMR, Article 36 EUTMDR and Article 7 of the Decision of the Presidium on the organisation of the Boards of Appeal as currently in force

Registrar: H. Dijkema

gives the following

Decision

Summary of the facts

1. By an application filed on 17 August 2017, Yggdrasil Malta Limited (‘the applicant’) sought to register the figurative mark

for goods and services in Classes 9 and 41.

The applicant claimed the colours:

Yellow, green, orange, brown blue, black, white, purple and red.

2. The application was published on 4 September 2017.

3. On 1 December 2017, IGT UK Interactive Limited (‘the opponent’) filed an opposition against the registration of the published trade mark application for all the goods and services.

4. The grounds of opposition were those laid down in Article 8(1)(b) EUTMR.

5. The opposition was based on EUTM registration No 12 252 623 ‘FISH TANK’ filed on 24 October 2013 and registered on 5 March 2014 for goods and services, in Classes 9, 28 and 41.

6. By decision of 28 November 2018 (‘the contested decision’), the Opposition Division refused the trade mark applied for, for all the contested goods and services on the ground that there was a likelihood of confusion.

7. On 25 January 2019, the applicant filed an appeal against the contested decision.

8. On 18 March 2019, the applicant filed an application for a declaration of revocation of the earlier mark, European Union trade mark No 12 252 623 ‘FISH TANK’ (Cancellation No 33 982 C). The request was directed against all the goods and services covered by the EUTM.

9. The applicant’s statement of grounds of the appeal was received on 28 March 2019.

10. The opponent did not file any observations in reply to the appeal’s statement of grounds.

11. On 24 July 2019, the Cancellation Division revoked the opponent’s rights in respect of European Union trade mark No 12 252 623 in their entirety as from 18 March 2019.

12. The opponent did not file an appeal within the set time limit therefor against the Cancellation Division’s decision as mentioned in the previous paragraph.

13. On 6 November 2019, the Office informed the opponent that the revocation decision of 24 July 2019 had become final and that as a result European Union trade mark No 12 252 623 was revoked.

Reasons

14. Given that the only earlier mark has been cancelled in its entirety by means of an application for a declaration of revocation, the opposition and appeal proceedings have become devoid of purpose and must therefore be closed (25/11/2014, T‑556/12, KAISERHOFF, EU:T:2014:985, § 40 and the case-law cited therein).

Costs

15. In the present case, given that this Board has not entered into the merits of the opposition, it finds it equitable that each party bear its own costs in the opposition and appeal proceedings in accordance with Article 109(3) EUTMR.

Order

On those grounds,

THE BOARD

hereby:

1. Closes the proceedings;

2. Orders each party to bear its own costs and fees for the opposition and
   appeal proceedings.

Signed H. Salmi

Registrar: Signed H.Dijkema