ORDER OF THE COURT (Chamber determining whether appeals may proceed)
4 October 2024 (*)
( Appeal – Community design – 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‑502/24 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 18 July 2024,
Puma SE, established in Herzogenaurach (Germany), represented by M. Schunke and P. Trieb, Rechtsanwälte,
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, O. Spineanu-Matei and S. Rodin (Rapporteur), Judges,
Registrar: A. Calot Escobar,
having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, N. Emiliou,
makes the following
Order
1        By its appeal, Puma SE asks the Court of Justice to set aside the judgment of the General Court of the European Union of 8 May 2024, Puma v EUIPO – Road Star Group (Footwear) (T‑757/22, EU:T:2024:291; ‘the judgment under appeal’), by which the General Court dismissed its action for annulment of the decision of the Third Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 21 September 2022 (Case R 1900/2021-3), concerning invalidity proceedings between Puma SE and Road Star Group.
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 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 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 the grounds of its appeal, alleging infringement of Article 6, read in conjunction with Article 25(1)(b), of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1), raise issues that are significant for the unity, consistency and development of EU law.
7        In the first place, the appellant submits that it follows from the judgment under appeal that the proprietor of a design whose protection is limited to an essential part of a product can practically never successfully oppose the final product design including the protected earlier design. That proprietor has no legal remedy to challenge successfully the validity of the registration of such a subsequent design. The appellant submits that, if the view of the General Court and EUIPO prevails, the proprietor of an earlier design can only take action against the use of the subsequent design by way of infringement proceedings.
8        Furthermore, the judgment under appeal, by preventing the proprietor of a design from successfully opposing a subsequent design for the final product, leads to de facto discrimination against product parts as compared with final products. That would be contrary to Article 3(a), read in conjunction with Article 10(1), of Regulation No 6/2002.
9        The appellant also submits that the General Court, in paragraph 35 of the judgment under appeal, merely stated that Article 25(1)(b) of Regulation No 6/2002 ‘is not part of the rationale of protection of an earlier right’, without providing arguments concerning the legitimate interest of the proprietor of the subsequent design in the validity of its design right.
10      In that regard, the appellant submits that a question which is significant for the unity, consistency or development of EU law arises, namely whether, when comparing an earlier design which has been registered for part of a product with the subsequent design which has been registered for the final product and which takes over the protected part identically or similarly, the scope of protection of the earlier design must (exceptionally) be the basis for the purpose of assessing the individual character of a design within the meaning of Article 6 of Regulation No 6/2002.
11      In the second place, the appellant criticises the General Court for the fact that the judgment under appeal, read in conjunction with EUIPO’s practice in relation to Article 25(1)(d) of Regulation No 6/2002, leads to the result that the proprietor of an earlier design, which has been disclosed before the filing of the application for the subsequent design, cannot defend itself against the later design by way of an action for invalidity.
12      That raises the issue, which is significant for the unity, consistency and development of EU law, whether, under Article 25(1)(d) of Regulation No 6/2002, a design may be declared invalid even if the earlier design has been made available to the public before the date of filing of the subsequent contested design.
13      In the third and last place, the appellant considers that the questions raised go far beyond the present proceedings, the previous decisions and the appeal. Furthermore, the protection of designs for individual parts of products is of considerable importance for a large number of undertakings in almost every field of commercial activity.
14      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 19 July 2024, Sumol + Compal Marcas v EUIPO, C‑333/24 P, EU:C:2024:628, paragraph 9).
15      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 19 July 2024, Sumol + Compal Marcas v EUIPO, C‑333/24 P, EU:C:2024:628, paragraph 10).
16      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, 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 (orders of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraph 22, and of 19 July 2024, Sumol + Compal Marcas v EUIPO, C‑333/24 P, EU:C:2024:628, paragraph 11).
17      A request that an appeal be allowed to proceed which does not contain the information mentioned in the preceding paragraph 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 19 July 2024, Sumol + Compal Marcas v EUIPO, C‑333/24 P, EU:C:2024:628, paragraph 12).
18      In the present case, as regards the arguments summarised in paragraphs 7 to 13 above, by which the appellant seeks to demonstrate that the issues of law raised by certain grounds on which the appeal is based are significant with respect to the unity, consistency and development of EU law, it must be pointed out that, although the appellant identifies errors of law and of assessment allegedly made by the General Court, it does not explain to the requisite standard or, in any event, show how such issues, assuming they are established, raise questions which are significant with respect to the unity, consistency or development of EU law which would justify allowing the appeal to proceed.
19      In that regard, it should be borne in mind that, in accordance with the burden of proof which lies with the appellant requesting that an appeal be allowed to proceed, the appellant must demonstrate that its 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 scope of the judgment under appeal and, ultimately, that of its appeal. In order to demonstrate that that is the case, it is necessary to establish both the existence and the significance of such issues by means of concrete evidence specific to the particular case, and not simply arguments of a general nature (see, to that effect, orders of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraphs 27 and 28, and of 19 July 2024, Sumol + Compal Marcas v EUIPO, C‑333/24 P, EU:C:2024:628, paragraph 15).
20      That is not, however, demonstrated in the present request. The appellant merely asserts that the scope of the questions referred goes beyond the present proceedings, previous decisions and the appeal and that the protection of designs for individual parts of products is of considerable importance for a large number of undertakings. Such assertions are clearly too general to constitute that demonstration.
21      As regards, the appellant’s line of argument, referred to in paragraph 9 above, in so far as it refers to the obligation on the General Court to state reasons, it should be borne in mind that, while it is true, as it apparent from the case-law of the Court of Justice, 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 the appeal is allowed to proceed nevertheless remains subject to specific conditions consisting, for the appellant, in demonstrating, as referred to in paragraph 16 above, that that appeal raises one or more issues that are significant with respect to the unity, consistency or development of EU law, with the implications referred to in paragraph 19 above (see, by analogy, order of 8 May 2024, Wyrębski v QC and Others, C‑689/23 P, EU:C:2024:397, paragraph 25). However, the appellant has not demonstrated to the requisite legal standard how the alleged failure to state reasons raises an issue that is significant with respect to the unity, consistency or development of EU law.
22      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.
23      In the light of the foregoing considerations, the appeal should not be allowed to proceed.
Costs
24      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.
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.      Puma SE shall bear its 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.