ORDER OF THE COURT (Chamber determining whether appeals may proceed)
23 November 2021 (*)
(Appeal – EU trade mark – Whether appeals may be allowed to proceed – Article 170b of the Court’s Rules of Procedure – Request failing to demonstrate a significant issue with respect to the unity, consistency or development of EU law – Appeal not allowed to proceed)
In Case C‑345/21 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 3 June 2021,
Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi,
established in Nicosia (Cyprus), represented by S. Malynicz QC, S. Baran, Barrister, and V. Marsland, Solicitor,
appellant,
the other party to the proceedings being:
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 of Justice, S. Rodin (Rapporteur) and N. Piçarra, Judges,
Registrar: A. Calot Escobar,
having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, M. Campos Sánchez Bordona,
makes the following
Order
1        By its appeal, Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi seeks to have set aside the judgment of the General Court of the European Union of 24 March 2021, Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO – Filotas Bellas & Yios (Halloumi) (T‑282/19, not published, EU:T:2021:154) (‘the judgment under appeal’), by which the General Court dismissed its action for annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 15 February 2019 (Case R 2295/2017-4), relating to invalidity proceedings between Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi and Filotas Bellas & Yios.
Whether the appeal should 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 the 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 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 claims that the appeal raises three issues that are significant with respect to the unity, consistency and development of EU law.
7        By its first argument, the appellant criticises the General Court for having infringed, in paragraph 117 of the judgment under appeal, Article 52(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1) and having failed correctly to apply the judgments of 12 September 2019, Koton Mağazacilik Tekstil Sanayi ve Ticaret v EUIPO (C‑104/18 P, EU:C:2019:724, paragraph 45), and of 29 January 2020, Sky and Others (C‑371/18, EU:C:2020:45, paragraphs 74 and 75), in so far as it defined dishonesty as a criterion for assessing the existence of bad faith. The appellant adds that the General Court departed from the judgment of 21 April 2021, Hasbro v EUIPO – Kreativni Događaji (MONOPOLY) (T‑663/19, EU:T:2021:211, paragraph 41), which reproduces the case-law of the Court of Justice referred to above, according to which dishonesty is merely one of alternative grounds for a finding of bad faith.
8        Thus, the appellant submits that that inconsistency in the case-law threatens the unity of EU law, since issues relating to bad faith are regularly brought before national courts. The latter could take divergent views on such issues on account of the absence of an applicable consistent criterion.
9        By its second and third arguments, the appellant criticises the General Court for having failed correctly to apply Article 53(1)(a), read in conjunction with Article 8(1)(b) and (5) of Regulation No 207/2009, and the case-law of the Court of Justice, in particular the judgments of 24 May 2012, Formula One Licensing v OHIM (C‑196/11 P, EU:C:201:314, paragraphs 40 to 47), and of 5 March 2020, Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO (C‑766/18 P, EU:C:2020:170).
10      More specifically, the appellant submits that the General Court attached excessive weight to the distinctiveness of the earlier mark in the comparisons of the signs and did not deliver the judgment under appeal on the basis of the evidence produced, which is an issue which is significant with respect to the development of EU law. In addition, the General Court allegedly erred in law when it held, in paragraph 50 of the judgment under appeal, that the burden of proof of the distinctiveness of the earlier mark lies on the proprietor of the mark. The General Court followed, in that context, the case-law resulting from the judgment of 25 September 2018, Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO – M. J. Dairies (BBQLOUMI) (T‑328/17, not published, EU:T:2018:594, paragraph 41), whereas that case-law was called into question in the Opinion of Advocate General Kokott of 17 October 2019, Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO (C‑766/18 P, EU:C:2019:881), which raises an issue of consistency of EU law.
11      Lastly, the appellant claims that the General Court incorrectly held that, regarding the registrability and scope of the protection of collective marks, the various systems for the protection of rights, such as the trade mark system and the system of designations of origin and protected geographical indications, can affect one another under EU law.
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 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 (see, inter alia, orders of 24 October 2019, Porsche v EUIPO, C‑613/19 P, EU:C:2019:905, paragraph 14, and of 6 October 2021, FCA Italy v EUIPO, C‑360/21 P, not published, EU:C:2021:841, paragraph 13).
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 (see, to that effect, 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, as regards, in the first place, the arguments set out in paragraphs 7 and 8 of the present order that the General Court has departed from the relevant case-law of the Court of Justice and its own case-law, it must be noted that, in accordance with the burden of proof which lies with the appellant requesting that the appeal be allowed to proceed, such arguments are not, in themselves, sufficient to establish that that appeal raises an issue that is significant with respect to the unity, consistency or development of EU law, the appellant having to comply to that end with all the requirements set out in paragraph 14 of the present order (see, to that effect, order of 24 October 2019, Porsche v EUIPO, C‑613/19 P, EU:C:2019:905, paragraph 17).
17      More specifically, although the appellant specifies the paragraphs of the judgment under appeal and those of the judgments of the Court of Justice which were allegedly disregarded, it does not, however, provide sufficient information as to the similarity of the situations referred to in those judgments such as to establish the reality of the alleged contradiction (see, to that effect, order of 13 February 2020, Confédération nationale du Crédit Mutuel v Crédit Mutuel Arkéa, C‑867/19 P, not published, EU:C:2020:103, paragraph 18).
18      The appellant also fails to provide any indication of the actual reasons why such a contradiction, assuming it to be established, raises an issue that is significant with respect to the unity, consistency or development of EU law.
19      In the second place, as regards the arguments summarised in paragraphs 9 to 10 of the present order, according to which the General Court erred in law by attaching excessive weight to the distinctiveness of the earlier mark in the comparison of the signs and failed to take into account the evidence produced, since that finding is a finding of fact, the argument in question does not raise an issue that is significant with respect to the unity, consistency or development of EU law (see, to that effect, orders of 10 October 2019, KID-Systeme v EUIPO, C‑577/19 P, not published, EU:C:2019:854, paragraph 20, and of 24 June 2021, Olimp Laboratories v EUIPO, C‑219/21 P, not published, EU:C:2021:522, paragraph 20).
20      In addition, as the appellant merely argues that the General Court failed correctly to apply certain provisions of Regulation No 207/2009 and certain case-law, and submits that there is no consistent case-law concerning the apportionment of the burden of proof of distinctiveness, it must be emphasised that although the appellant identifies the paragraphs of the judgment under appeal and those of the decisions of the General Court and the Court of Justice which were alleged not to have been correctly applied, it does not specifically and clearly explain how exactly the case-law referred to was not correctly applied or provide sufficient information as to the similarity of the situations referred to in that case-law such as to establish the reality of the alleged contradictions. Moreover, as regards the alleged failure to have applied certain provisions of that regulation
correctly,
the appellant does not explain, specifically and clearly, the error of law allegedly committed by the General Court.
21      In the third and last place, as regards the reasoning set out in paragraph 11 of the present order, it must be noted that the explanations given by the appellant are not sufficiently clear and specific
so as to enable the Court to understand the nature of the error of law that the General Court is alleged to have committed and what is the specific question of law that is significant with respect to the unity, consistency or development of EU law.
22      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.
23      In the light of all of the foregoing considerations, the appeal should not be allowed to proceed.
Costs
24      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.
25      Since the present order was adopted before the appeal was served on the other party to the proceedings and, therefore, before it 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.      Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi shall bear its own costs.
Luxembourg, 23 November 2021.
A. Calot Escobar
L. Bay Larsen
Registrar
President of the Chamber determining whether appeals may proceed
*      Language of the case: English.