Order;Information — ECLI:EU:C:2025:1022
Date: 2025-12-02
Language of the case: English

ORDER OF THE COURT (Chamber determining whether appeals may proceed) 2 December 2025 (*) ( Appeal – EU trade mark – Determination as to whether appeals should be allowed to proceed – Article 170b of the Rules of Procedure of the Court of Justice – Request failing to demonstrate that an issue is significant with respect to the unity, consistency or development of EU law – Refusal to allow the appeal to proceed ) In Case C‑365/25 P, APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 28 May 2025, Giuliani SpA, established in Milan (Italy), represented by S. de Bosio, avvocato, and D. Philippe, avocat, appellant, the other parties to the proceedings being: European Union Intellectual Property Office (EUIPO), defendant at first instance, Health and Happiness (H&H) Hong Kong Ltd, established in Hong Kong (China), intervener at first instance, THE COURT (Chamber determining whether appeals may proceed), composed of T. von Danwitz, Vice-President of the Court, M. Gavalec and Z. Csehi (Rapporteur), Judges, Registrar: A. Calot Escobar, having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, M. Szpunar, makes the following Order 1 By its appeal, Giuliani SpA asks the Court of Justice to set aside the judgment of the General Court of the European Union of 2 April 2025, Giuliani v EUIPO – H&H (Swisse) (T‑442/23, ‘the judgment under appeal’, EU:T:2025:354), by which the General Court dismissed its action for annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 31 May 2023 (Case R 2185/2019-1 RENV), concerning invalidity proceedings between Giuliani and Health and Happiness (H&H) Hong Kong Ltd. The request that the appeal be allowed to proceed 2 Under the first paragraph of Article 58a of the Statute of the Court of Justice of the European Union, an appeal brought against a decision of the General Court concerning a decision of an independent board of appeal of EUIPO is not to proceed unless the Court of Justice first decides that it should be allowed to do so. 3 In accordance with the third paragraph of Article 58a of that statute, an appeal is to be allowed to proceed, wholly or in part, in accordance with the detailed rules set out in the Rules of Procedure of the Court of Justice, where it raises an issue that is significant with respect to the unity, consistency or development of EU law. 4 Under Article 170a(1) of the Rules of Procedure, in the situations referred to in the first paragraph of Article 58a of the abovementioned statute, the appellant is to annex to the appeal a request that the appeal be allowed to proceed, setting out the issue raised by the appeal that is significant with respect to the unity, consistency or development of EU law and containing all the information necessary to enable the Court of Justice to rule on that request. 5 In accordance with Article 170b(1) and (3) of the Rules of Procedure, the Court is to rule as soon as possible on the request that the appeal be allowed to proceed, in the form of a reasoned order. Arguments of the appellant 6 In support of its request that the appeal be allowed to proceed, the appellant submits that its appeal raises issues that are significant with respect to the unity, consistency and development of EU law. 7 In that regard, it puts forward, in essence, two grounds of appeal, alleging, first, misinterpretation of Article 7(1)(g) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), and, second, misinterpretation of Article 51(1)(b) of that regulation. 8 By its first ground of appeal, the appellant submits that the General Court’s interpretation, according to which a trade mark consisting of a direct and clear reference to an indication of geographical origin – in the present case Switzerland – is not misleading on the relevant date if the goods can theoretically be manufactured there, infringes Article 7(1)(g) of Regulation No 40/94. Furthermore, it maintains that not only does that interpretation undermine the consistency and unity of EU law relating to fair trading, but it also results in the de facto exclusion of the absolute ground for refusal referred to in that provision, thereby conflicting with the preamble to the Paris Convention for the Protection of Industrial Property, signed in Paris on 20 March 1883, last revised at Stockholm on 14 July 1967 and amended on 28 September 1979 (United Nations Treaty Series, Vol. 828, No 11851, p. 305), which requires trade marks consisting of an inherently misleading indication of geographical origin to be refused. Consequently, a mark such as the one at issue is void ab initio under Article 7(1)(g) of Regulation No 40/94, unless the list of goods covered by the application for registration is limited to goods manufactured in the place of geographical origin, which, in the present case, is Switzerland. 9 By its second ground of appeal, the appellant submits that the General Court’s interpretation, according to which the annulment of a trade mark on grounds of bad faith requires not only awareness of the reputation of the indication of geographical origin in relation to the goods concerned, but also the intention to pass off the goods concerned as goods manufactured in Switzerland, departs from the case-law of the Court of Justice resulting from the judgment of 11 June 2009, Chocoladefabriken Lindt & Sprüngli (C‑529/07, EU:C:2009:361), and undermines the consistency of EU law. Findings of the Court 10 As a preliminary point, it must be recalled that it is for the appellant to demonstrate that the issues raised by its appeal are significant with respect to the unity, consistency or development of EU law (orders of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraph 20, and of 29 April 2025, SC v Eulex Kosovo, C‑881/24 P, EU:C:2025:313, paragraph 14 and the case-law cited). 11 Furthermore, as is apparent from the third paragraph of Article 58a of the Statute of the Court of Justice of the European Union, read together with Article 170a(1) and Article 170b(4) of the Rules of Procedure, the request that an appeal be allowed to proceed must contain all the information necessary to enable the Court to give a ruling on whether the appeal should be allowed to proceed and to specify, where the appeal is allowed to proceed in part, the pleas in law or parts of the appeal to which the response must relate. Given that the objective of the mechanism provided for in Article 58a of that statute whereby the Court determines whether an appeal should be allowed to proceed is to restrict review by the Court to issues that are significant with respect to the unity, consistency or development of EU law, only grounds of appeal that raise such issues and that are established by the appellant are to be examined by the Court in an appeal (orders of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraph 21, and of 29 April 2025, SC v Eulex Kosovo, C‑881/24 P, EU:C:2025:313, paragraph 15 and the case-law cited). 12 Accordingly, a request that an appeal be allowed to proceed must, in any event, set out clearly and in detail the grounds on which the appeal is based, identify with equal clarity and detail the issue of law raised by each ground of appeal, specify whether that issue is significant with respect to the unity, consistency or development of EU law and set out the specific reasons why that issue is significant according to that criterion. As regards, in particular, the grounds of appeal, the request that an appeal be allowed to proceed must specify the provision of EU law or the case-law that has been infringed by the judgment or order under appeal, explain succinctly the nature of the error of law allegedly committed by the General Court, and indicate to what extent that error had an effect on the outcome of the judgment or order under appeal. Where the error of law relied on results from an infringement of the case-law, the request that the appeal be allowed to proceed must explain, in a succinct but clear and precise manner, first, where the alleged contradiction lies, by identifying the paragraphs of the judgment or order under appeal which the appellant is calling into question as well as those of the ruling of the Court of Justice or the General Court alleged to have been infringed, and, second, the concrete reasons why such a contradiction raises an issue that is significant with respect to the unity, consistency or development of EU law (orders of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraph 22, and of 29 April 2025, SC v Eulex Kosovo, C‑881/24 P, EU:C:2025:313, paragraph 16 and the case-law cited). 13 A request that an appeal be allowed to proceed which does not contain the information mentioned in the preceding paragraph of the present order cannot, from the outset, be capable of demonstrating that the appeal raises an issue that is significant with respect to the unity, consistency or development of EU law that justifies the appeal being allowed to proceed (orders of 24 October 2019, Porsche v EUIPO, C‑613/19 P, EU:C:2019:905, paragraph 16, and of 17 June 2025, Butzkies-Schiemann v EUIPO, C‑46/25 P, EU:C:2025:453, paragraph 17). 14 In the present case, as regards, in the first place, the arguments summarised in paragraph 8 of the present order, it must be observed that, although the appellant sets out the errors of law allegedly committed by the General Court, it does not specifically explain or, a fortiori, demonstrate, in a manner that complies with all the requirements set out in paragraph 12 of the present order, how its first ground of appeal raises an issue that is significant with respect to the unity, consistency or development of EU law which would justify the appeal being allowed to proceed. 15 In that context, it follows from the case-law that, in accordance with the burden of proof which lies with an appellant requesting that an appeal be allowed to proceed, the appellant must demonstrate that, independently of the issues of law invoked in its appeal, the appeal raises one or more issues that are significant with respect to the unity, consistency or development of EU law, the scope of that criterion going beyond the judgment under appeal and, ultimately, its appeal. In order to demonstrate that that is the case, it is necessary to establish both the existence and significance of such issues by means of concrete evidence specific to the particular case, and not simply by means of arguments of a general nature (order of 25 June 2025, Puma v EUIPO, C‑145/25 P, EU:C:2025:496, paragraph 21 and the case-law cited). 16 The appellant’s claims that its first ground of appeal raises several issues that are significant with respect to the unity, consistency and development of EU law, in addition to being general in nature, do not in any way refer to the case-law of the General Court on which the judgment under appeal relies in that regard. Thus, the appellant does not explain how the judgment under appeal infringed that case-law or, as the case may be, the concrete reasons why that case-law is itself vitiated by errors of law. 17 Moreover, in so far as the appellant seeks to call into question the General Court’s assessment of the evidence produced before it, suffice it to recall that such arguments cannot, in principle, be capable, as such and even if well founded, of raising an issue that is significant with respect to the unity, consistency or development of EU law (order of 25 June 2025, Puma v EUIPO, C‑145/25 P, EU:C:2025:496, paragraph 24 and the case-law cited). 18 As regards, in the second place, the line of argument summarised in paragraph 9 of the present order, according to which the General Court departed from the case-law of the Court of Justice, it must be observed that the appellant does not identify in a clear and precise manner the paragraphs of the judgment under appeal where the alleged contradiction lies and that, in any event, such a line of argument is not, in itself, sufficient to establish, in accordance with the burden of proof which lies with the appellant requesting that an appeal be allowed to proceed, that that appeal raises an issue that is significant with respect to the unity, consistency or development of EU law. To that end, the appellant must comply with all the requirements set out in paragraph 12 of the present order (order of 2 October 2024, MHCS v EUIPO and Lidl Stiftung, C‑362/24 P, EU:C:2024:816, paragraph 23 and the case-law cited). In the present case, the appellant does not in any way set out the concrete reasons why such a contradiction, even if it were established, raises an issue that is significant with respect to the unity, consistency or development of EU law. 19 In those circumstances, the request that the appeal be allowed to proceed submitted by the appellant is not such as to establish that the appeal raises an issue that is significant with respect to the unity, consistency or development of EU law. 20 In the light of the foregoing considerations, the appeal should not be allowed to proceed. Costs 21 Under Article 137 of the Rules of Procedure, applicable to proceedings on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. 22 Since the present order was adopted before the appeal was served on the other parties to the proceedings and, therefore, before they could have incurred costs, it is appropriate to decide that the appellant is to bear its own costs. On those grounds, the Court (Chamber determining whether appeals may proceed) hereby orders: 1. The appeal is not allowed to proceed. 2. Giuliani SpA shall bear its own costs. Luxembourg, 2 December 2025. A. Calot Escobar T. von Danwitz Registrar President of the Chamber determining whether appeals may proceed * Language of the case: English.