ORDER OF THE COURT (Chamber determining whether appeals may proceed)
6 October 2021 (*)
(Appeal – EU trade mark – Whether appeals should be allowed to proceed – Article 170b of the Rules of Procedure of the Court of Justice – Request failing to demonstrate the significance of an issue of law with respect to the unity, consistency or development of EU law – Appeal not allowed to proceed)
In Case C‑360/21 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 9 June 2021,
FCA Italy SpA, established in Turin (Italy), represented by F. Jacobacci and E. Truffo, lawyers,
applicant,
the other parties to the proceedings being:
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
Christoph Bettag, residing in Aachen (Germany), represented by M. Metzner, A. Hönninger, and M. Zeis, Rechtsanwälte,
intervener at first instance,
THE COURT (Chamber determining whether appeals may proceed),
composed of R. Silva de Lapuerta, Vice-President of the Court, N. Piçarra and D. Šváby (Rapporteur), Judges,
Registrar: A. Calot Escobar,
having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, J. Richard de la Tour,
makes the following
Order
1        By its appeal, FCA Italy SpA (‘the applicant’) asks the Court of Justice to set aside the judgment of the General Court of the European Union of 28 April 2021, FCA Italy v EUIPO – Bettag (Pandem) (T‑191/20, not published, EU:T:2021:226; ‘the judgment under appeal’) by which the General Court rejected its action seeking annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 4 February 2020 (Case R 1483/2019‑5), concerning opposition proceedings between the applicant and Mr Bettag.
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, where it raises an issue that is significant with respect to the unity, consistency or development of Union law.
4        Under Article 170a(1) of the Rules of Procedure, 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 European Union 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 its request that the appeal be allowed to proceed, the appellant submits that the appeal raises issues that are significant with respect to the unity, consistency and development of EU law, in that the judgment under appeal is based on a misinterpretation of the basic principles governing the comparison of the marks when assessing the likelihood of confusion and does not take account of the settled case-law of the Court of Justice.
7        In the first place, the appellant submits that the General Court wrongly based its judgment solely on the alleged conceptual difference between the marks at issue, with the result that it ruled out a likelihood of confusion despite the undeniable visual and phonetic similarities of those marks. That difference is based on the fact that the term PANDA of the applicant’s earlier marks has a clear meaning in most of the languages of the European Union, whereas the mark applied for, PANDEM, has no meaning. According to the appellant, that lack of meaning cannot, as such, lead to the conclusion that there is a conceptual difference between the signs, as is apparent from the case-law of the Court of Justice.
8        In the second place, the appellant submits that the General Court misinterpreted the principle of interdependence of the relevant factors in concluding, in paragraph 78 of the judgment under appeal, that ‘the earlier marks have, from the point of view of the relevant public, a clear, specific meaning which can be grasped immediately by that public, whereas the sign applied for has no meaning’. The General Court erred in its assessment, coming to a dangerous conclusion as regards the overall assessment and the interdependence of the relevant factors.
9        In the third place, the appellant claims that the General Court erred in stating, in paragraph 79 of the judgment under appeal, that the relevant public ‘is not likely to consider that the signs at issue originate from the same undertaking or from economically linked undertakings, despite the enhanced distinctiveness of the earlier marks’. That conclusion is drawn from an abstract reasoning, founded on the goods covered by the marks, which does not take account of the fact that the level of attention of consumers may vary, depending on the category of goods for which they may actually be seeking.
10      In the fourth place, the appellant submits that, in paragraph 80 of the judgment under appeal, the General Court erred in finding that, despite the visual and phonetic similarity between the signs and the reputation of the earlier mark, there was no likelihood of confusion between the earlier marks and the mark applied for, which cover identical and similar goods.
11      The appellant concludes that the judgment under appeal is very detrimental and dangerous for the sake of the unity, consistency or development of EU law, namely pertaining to EU trade mark law. It takes the view that a judgment of the Court of Justice is necessary in order to guarantee the certainty of the interpretation of EU law by EUIPO and the General Court and the harmonised interpretation and application of EU law throughout the European Union.
12      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 (order of 24 October 2019, Porsche v EUIPO, C‑613/19 P, EU:C:2019:905, paragraph 13 and the case-law cited).
13      Furthermore, as is clear from the third paragraph of Article 58a of the Statute of the Court of Justice of the European Union, read in conjunction 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 the 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 3 September 2020, Gamma-A v EUIPO, C‑199/20 P, not published, EU:C:2020:662, paragraph 10 and the case-law cited).
14      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 under appeal or the 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 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 or the General Court alleged to have been infringed, and secondly, the concrete reasons why such a contradiction raises an issue that is significant with respect to the unity, consistency or development of EU law (order of 24 October 2019, Porsche v EUIPO, C‑613/19 P, EU:C:2019:905, paragraph 15 and the case-law cited).
15      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 (order of 24 October 2019, Porsche v EUIPO, C‑613/19 P, EU:C:2019:905, paragraph 16 and the case-law cited).
16      In the present case, it should be noted, first, that in its application, the appellant does not indicate the grounds on which its appeal is based or the points of law to which they relate.
17      As is apparent from paragraphs 6 to 11 of the present order, the appellant merely refers generically to the appeal, without, however, specifying which argument relates to which ground of appeal. The Court is neither in a position to identify the pleas in law or parts of the appeal to which the response must relate in the event that the appeal is allowed to proceed, nor, accordingly, to carry out the review provided for in Article 170b(4) of the Rules of Procedure (see, by analogy, order of 22 October 2019, Holzery Cia v EUIPO, C‑582/19 P, not published, EU:C:2019:891, paragraph 14). Similarly, the appellant does not specify which provisions of European Union law or case-law were infringed by the judgment under appeal and does not sufficiently identify the error or errors allegedly committed by the General Court (see by analogy, order of 3 September 2020, Gamma-A v EUIPO, C‑199/20 P, not published, EU:C:2020:662, paragraph 13).
18      It should also be stated, secondly, that the appellant does not provide adequate reasoning why the present appeal raises an issue that is significant with respect to the unity and consistency of EU law such as to justify that the appeal be allowed to proceed.
19      First, the appellant alleges a misinterpretation of the basic principles governing the comparison of trade marks, without, however, providing any indication of the reasons why such an incorrect interpretation, even if established, would raise a question of importance to the unity, consistency or development of EU law which would justify the admission of the appeal (see, by analogy, order of 11 February 2020, Rutzinger-Kurpas v EUIPO, C‑887/19 P, not published, EU:C:2020:91, paragraph 13).
20      Second, as regards the arguments set out in paragraphs 7 to 11 of the present order, the appellant merely asserts, in a generic manner, that those arguments demonstrate that the judgment under appeal is particularly harmful and dangerous to the unity, consistency or development of EU law. Thus, it does not provide any information making it possible to identify with clarity and detail the reasons why the issues raised by that assessment are significant with respect to the unity, consistency or development of EU law and justify the appeal being allowed to proceed (see, by analogy, order of 21 April 2020, Rezon v EUIPO, C‑26/20 P, not published, EU:C:2020:283, paragraph 14).
21      In those circumstances, it must be held that the request submitted by the appellant 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.
22      In the light of all of the foregoing, the appeal should not be allowed to proceed.
Costs
23      Under Article 137 of the Rules of Procedure, applicable to the procedure 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.
24      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.      FCA Italy SpA shall bear its own costs.
Luxembourg, 6 October 2021.
A. Calot Escobar
R. Silva de Lapuerta
Registrar
Chamber determining whether
appeals may proceed
*      Language of the case: English.