ORDER OF THE COURT (Chamber determining whether appeals may proceed)
5 December 2022 (*)
(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‑594/22 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 14 September 2022,
Gugler France, established in Les Auxons (France), represented by S. Guerlain, avocat,
appellant,
the other parties to the proceedings being:
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
Alexander Gugler, residing in Maxdorf (Germany),
intervener at first instance,
THE COURT (Chamber determining whether appeals may proceed)
composed of L. Bay Larsen, Vice-President of the Court, M. Safjan and N. Jääskinen, Judges,
Registrar: A. Calot Escobar,
having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, A. Rantos,
makes the following
Order
1        By its appeal, Gugler France seeks to have set aside the judgment of the General Court of the European Union of 13 July 2022, Gugler France v EUIPO – Gugler (GUGLER), (T‑147/21, not published, EU:T:2022:444), by which the General Court dismissed its action for annulment of the decision of the Fifth Board of Appeal of EUIPO of 9 December 2020 (Case R 893/2020-5) confirming the registration of the figurative mark GUGLER.
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        The third paragraph of Article 58a of that statute provides that 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 said 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’s decision on the request that the appeal be allowed to proceed is to be taken as soon as possible and is to take the form of a reasoned order.
6        In support of its request that the appeal be allowed to proceed, the appellant submits that the issue relating to the assessment of whether the applicant for registration was not acting in bad faith when the application for registration of the mark was lodged, raised in its single ground of appeal alleging infringement of Article 51(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) is significant; it also claims that the General Court failed to have regard in that connection to the case-law of the Court of Justice according to which the question whether the applicant is acting in bad faith must be the subject of an overall assessment, taking into account all the factors relevant to the particular case at the time when the application for registration of the mark is lodged, and the applicant’s intention at that time, by reference to the objective circumstances of the particular case (see judgment of 11 June 2009, Chocoladefabriken Lindt & Sprüngli, C‑529/07, EU:C:2009:361, paragraphs 37, 41 and 42).
7        In addition, the appellant maintains that Article 51(1)(b) of Regulation No 40/94 does not define the concept of ‘bad faith’, the scope of which is highly significant, given that it meets an objective of general interest, namely that of preventing the registration of marks that are abusive or contrary to honest use in industrial or commercial matters, as EU law cannot cover such practices. It is for the Court of Justice to specify the content of that concept on the basis of its case-law, to which the General Court failed to have regard.
8        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 20 October 2022, Fidelity National Information Services v EUIPO, C‑446/22 P, not published, EU:C:2022:827, paragraph 11).
9        In addition, 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 (order of 20 October 2022, Fidelity National Information Services v EUIPO, C‑446/22 P, not published, EU:C:2022:827, paragraph 12 and the case-law cited).
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 20 October 2022, Fidelity National Information Services v EUIPO, C‑446/22 P, not published, EU:C:2022:827, paragraph 13).
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 (see order of 20 October 2022, Fidelity National Information Services v EUIPO, C‑446/22 P, not published, EU:C:2022:827, paragraph 141 and the case-law cited).
12      In the present case, with regard to the arguments set out in paragraphs 6 and 7 of the present order, relating to the infringement of Article 51(1)(b) of Regulation No 40/94 and, in particular, to the errors of law allegedly committed by the General Court in assessing whether the appellant acted in bad faith at the time when the application for registration of the mark was lodged, it should be noted that the appellant does not explain to the requisite standard or, in any event, show how such errors of law, assuming that they are established, raise an issue that is significant with respect to the unity, consistency or development of EU law that would justify allowing the appeal to proceed. The appellant merely lists the errors allegedly committed by the General Court and submits arguments of a general nature in support of the significance of the issue raised by the appeal. In order to demonstrate that the issue is significant with respect to the unity, consistency or development of EU law, it is necessary to establish both the existence and significance of such issue by means of concrete evidence specific to the particular case, and not simply arguments of a general nature (see, to that effect, order of 8 November 2022, Mandelay v EUIPO, C‑405/22 P, not published, EU:C:2022:860, paragraphs 16 and 17).
13      In so far as the appellant criticises the General Court for having disregarded the case-law of the Court of Justice, it must be recalled that a general claim that the General Court applied its own case-law or that of the Court of Justice incorrectly is not, in itself, sufficient to establish, in accordance with the burden of proof which lies with the person requesting that an appeal be allowed to proceed, that that appeal raises an issue that is significant with respect to the unity, consistency and development of EU law, the appellant having to comply with all the requirements set out in paragraph 10 of the present order (see, by analogy, order of 6 April 2022, Sanford v EUIPO, C‑19/22 P, not published, EU:C:2022:262, paragraph 18 and the case-law cited).
14      It must be stated that, in the present case, the appellant is limited to submitting arguments of a general nature without, however, explaining in a clear and precise manner the reasons why the alleged contradiction between the General Court’s assessments and the case-law of the Court of Justice relied on raises an issue that is significant with respect to the unity, consistency or development of EU law.
15      It follows that the appellant has not complied with all the requirements set out in paragraph 10 of the present order.
16      In those circumstances, it must be held that the appellant’s request is not capable of establishing 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 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.      Gugler France shall bear its own costs.
Luxembourg, 5 December 2022.
A. Calot Escobar
L. Bay Larsen
Registrar
President of the Chamber determining whether appeals may proceed
*      Language of the case: English.