ORDER OF THE COURT (Chamber determining whether appeals may proceed)
23 March 2023 (*)
(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‑732/22 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 28 November 2022,
G-Core Innovations Sàrl, established in Luxembourg (Luxembourg), represented by L. Axel Karnøe Søndergaard, advokat,
appellant,
the other parties to the proceedings being:
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
Coretransform GmbH, established in Berlin (Germany),
intervener at first instance,
THE COURT (Chamber determining whether appeals may proceed)
composed of L. Bay Larsen, Vice-President of the Court, M.L. Arastey Sahún and N. Wahl (Rapporteur), Judges,
Registrar: A. Calot Escobar,
having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, A.M. Collins,
makes the following
Order
1        By its appeal, G-Core Innovations Sàrl asks the Court of Justice to set aside the judgment of the General Court of the European Union of 28 September 2022, G-Core Innovations v EUIPO – Coretransform (G CORELABS) (T‑454/21, not published, EU:T:2022:591; ‘the judgment under appeal’), by which the General Court dismissed its action for annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 10 May 2021 (Case R 22/2021‑2), relating to opposition proceedings between Coretransform GmbH and G-Core Innovations.
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        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 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.
6        In support of its request that the appeal be allowed to proceed, the appellant submits that its appeal raises an issue that is significant with respect to the unity, consistency or development of EU law.
7        In that regard, it submits that, according to the case-law of the Court of Justice, EUIPO must, in the light of the principles of equal treatment and of sound administration, take into account the decisions already taken in respect of similar applications and consider with especial care whether it should decide in the same way or not (judgment of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraph 74).
8        The appellant contends it provided evidence that, in other opposition proceedings, which concerned the application for registration of the mark ‘Netmind Core’ and were based on the same earlier mark as that at issue in the present case, an Opposition Division of EUIPO had found that the element ‘core’ was of secondary importance in the mark ‘Netmind Core’, whereas, in the present case, the Opposition Division found that the element in common ‘core’ made the earlier mark and the mark applied for confusingly similar.
9        The appellant also submits that, although it is true that neither EUIPO nor the Board of Appeal should be bound by an incorrect earlier decision, the assessment of the likelihood of confusion should, however, be based on a legal criterion on which future trade mark applicants can rely. It states that the previous case-law must be uniform, in the sense that the assessment of specific elements with regard to specific goods must be the same, thus making it possible to predict the outcome to a reasonable degree. It contends that that is a significant point to clarify in order to ensure consistency in the application of EU law.
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 (order of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraph 20 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 16 November 2022, EUIPO v Nowhere, C‑337/22 P, EU:C:2022:908, paragraph 24).
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 made 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 which have allegedly 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 (order of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraph 22 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 1 February 2023, Balaban v EUIPO, C‑702/22 P, not published, EU:C:2023:67, paragraph 13).
14      In the present case, as regards, first, the arguments set out in paragraphs 6 to 9 of the present order, it must be pointed out that the arguments put forward by the appellant are not sufficiently clear and precise to enable the Court of Justice to understand the nature of the error of law allegedly made by the General Court. Consequently, whereas the appellant must satisfy all of the requirements set out in paragraph 12 of the present order, it must be held that it did not comply with all those requirements in so far as, first, it did not specify either the nature of the error of law allegedly made by the General Court or to what extent that error had an effect on the outcome of the judgment under appeal and, second, it failed to mention the paragraphs of that judgment which it is calling into question.
15      As regards, second, the arguments referred to in paragraph 9 of the present order, it is important to point out that the appellant does not explain, to the requisite legal standard, or, a fortiori, demonstrate, in a manner that complies with all of the requirements set out in paragraph 12 of the present order, how its 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.
16      In accordance with the burden of proof which rests on an appellant requesting that an appeal be allowed to proceed, the appellant must demonstrate that, independently of the issues of law relied on 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 this is the case, it is thus necessary to establish both the existence and significance of such issues by means of concrete evidence specific to the particular case, and not simply arguments of a general nature (order of 14 July 2022, Ignacio Carrasco v EUIPO, C‑247/22 P, not published, EU:C:2022:591, paragraph 17 and the case-law cited).
17      In the present case, the appellant’s arguments and its mere claim that its appeal raises an issue that is significant with respect to the consistency of EU law are manifestly too general be capable of constituting such a demonstration.
18      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.
19      In the light of the foregoing considerations, the appeal should not be allowed to proceed.
Costs
20      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.
21      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.      G-Core Innovations Sàrl shall pay its own costs.
Luxembourg, 23 March 2023.
A. Calot Escobar
L. Bay Larsen
Registrar
President of the Chamber determining whether appeals may proceed
*      Language of the case: English.