Lichtwer Pharma AG v OHIM (CFI; T-32/04; 16.11.06)
Lichtwer Pharma (“Lichtwer”) applied to register the mark LYCO-A for goods in Classes 5, 29 and 30. The following oppositions were filed:

Lichtwer Pharma (“Lichtwer”) applied to register the mark LYCO-A for goods in Classes 5, 29 and 30. The following oppositions were filed:

1. By Queisser Pharma GmbH based on earlier mark for LYCO PROTECT. The opposition was dismissed and no appeal was filed.

2. By Laboratiore L. Lafon based on the earlier mark LYOC. The opposition was dismissed.

3. By Medicom Pharma AG based on the earlier mark LYCO Q10. The opposition was upheld and no appeal was sought.
Laboratoire L. Lafon filed an appeal against the decision to dismiss its opposition. Following confirmation that the Medicom Pharma decision had become definitive, Lichtwer filed an observation that the appeal proceedings had become devoid of purpose.

The BoA held that (i) the appeal proceedings had indeed lost their purpose and (ii) Lichtwer would necessarily be the losing party in these proceedings since the application had been rejected ex tunc, albeit in different proceedings. The BoA therefore ordered Lichtwer to pay the fees and costs of the opposition and appeal proceedings.

Lichtwer appealed and sought an annulment of the operative part of the decision. The CFI allowed the appeal.
Article 81(4) provides the BoA with discretion as to the allocation of costs where a case does not proceed to judgment. However, it is for the Community Court to assess whether the BoA has exceeded the limits of its discretion and used the discretion in a manifestly wrongful manner.

Although an upheld opposition deprives parallel proceedings of their purpose, it does not in any way make it possible to determine which party in the parallel proceedings would be unsuccessful. Identification of the unsuccessful party may only be based on the purpose and factual and legal framework of those proceedings. The CFI held that the BoA had exceeded the limits of its discretion and the operative part of the contested decision was annulled.