ORDER OF THE COURT (Chamber determining whether appeals may proceed)
4 October 2024 (*)
( 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‑444/24 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 21 June 2024,
Valeria Converso, residing in San Giorgio a Cremano (Italy), represented by F. Musella, avocat,
appellant,
the other parties to the proceedings being:
Verla-Pharm Arzneimittel GmbH & Co. KG, established in Tutzing (Germany),
applicant at first instance,
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
THE COURT (Chamber determining whether appeals may proceed),
composed of L. Bay Larsen, Vice-President of the Court, Z. Csehi and D. Gratsias, Judges,
Registrar: A. Calot Escobar,
having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, M. Emiliou,
makes the following
Order
1        By her appeal, Ms Valeria Converso asks the Court of Justice to set aside the judgment of the General Court of the European Union of 24 April 2024, Verla-Pharm Arzneimittel v EUIPO – Converso (Pherla) (T‑357/23, EU:T:2024:268) by which the General
Court annulled the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 7 February 2023 (Case R 268/2022-2), concerning opposition proceedings between Verla-Pharm Arzneimittel GmbH & Co. KG and Ms Valeria Converso.
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        Pursuant to 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        Article 170a(1) of the Rules of Procedure provides that, in the situations referred to in the first paragraph of Article 58a of that 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 on the request that the appeal be allowed to proceed as soon as possible in the form of a reasoned order.
6        In support of her request that the appeal be allowed to proceed, the appellant submits that the single ground of her appeal, alleging that the General Court infringed
Article 8(1)(b) 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), as well as
Article 296 TFEU and Article 41 of the Charter of Fundamental Rights of the European Union, raises issues that are significant with respect to the unity, consistency and development of EU law.
7        In particular, the appellant disputes, first, the assessment of the elements which the General Court carried out in the examination of the visual and phonetic similarity of the marks at issue and, second, the General Court’s approach consisting in relying on the assumption that the contested goods are identical. According to the appellant, those issues, raised in support of the single ground of appeal, are significant with respect to the unity, consistency and development of EU law, because they concern, first, opposition and invalidity proceedings relating
to EU trade marks and those relating to national trade marks and, second, legal certainty and the General Court’s obligation to state reasons, which was not complied with in the present case and which constitutes an essential component of the principle of good
administration.
8        As a preliminary point, it must be recalled that it is for the appellant to demonstrate that the issues raised by her 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 28 September 2023, EUIPO v Neoperl, C‑93/23 P, EU:C:2023:724, paragraph 18).
9        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 and 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 28 September 2023, EUIPO v Neoperl, C‑93/23 P, EU:C:2023:724, paragraph 19).
10      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 28 September 2023, EUIPO v Neoperl, C‑93/23 P, EU:C:2023:724, paragraph 20).
11      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 11 July 2024, Puma v EUIPO, C‑248/24 P, EU:C:2024:621, paragraph 16).
12      In the present case, as regards the appellant’s arguments
concerning the General Court’s alleged incorrect assessment of the elements relating to the visual and phonetic similarity of the marks at issue, it should be noted, in the first place, that, by that line of argument, the appellant is in fact seeking to call into question the factual assessment made by the General Court. Such a line of argument cannot demonstrate 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 (see, by analogy, order of 19 July 2024,
Sumol + Compal Marcas v EUIPO, C‑333/24 P, EU:C:2024:628, paragraph 14 and the case-law cited).
13      In the second place, although it is true that failure to state reasons or an inadequate statement of reasons constitutes an error of law which may be relied on in the context of an appeal, the determination as to whether an appeal brought against a decision of the General Court concerning a decision of a board of appeal should be allowed to proceed remains subject to specific conditions consisting, for the appellant, in demonstrating that that appeal raises one or more issues that are significant with respect to the unity, consistency or development of EU law. 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 arguments of a general nature (order of 11 July 2024, Puma v EUIPO, C‑248/24 P, EU:C:2024:621, paragraph 21).
14      The appellant’s claim that the alleged errors made by the General Court concerning the assessment of the similarity of the marks at issue also constitute a failure to state reasons is manifestly too general to constitute such a demonstration.
15      Therefore, it is clear that the appellant’s request
does
not meet the requirements set out in paragraph 10 of this order.
16      In those circumstances, it must be held that the request submitted by the appellant does not establish that the appeal raises an issue that is significant with respect to the unity, consistency or development of EU law.
17      In the light of the foregoing considerations, the appeal should not be allowed to proceed.
Costs
18      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.
19      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 her own costs.
On those grounds, the Court (Chamber determining whether appeals may proceed) hereby orders:
1.      The appeal is not allowed to proceed.
2.      Ms Valeria Converso shall bear her own costs.
Luxembourg, 4 October 2024.
A. Calot Escobar
L. Bay Larsen
Registrar
President of the Chamber determining whether appeals may proceed
*      Language of the case: English.