ORDER OF THE COURT (Chamber determining whether appeals may proceed)
5 July 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‑120/23 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 28 February 2023,
Lin Suicha, residing in Wenxi (China), represented by V. Palmela Fidalgo, advogado,
appellant,
the other parties to the proceedings being:
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
Michael Kors (Switzerland) International GmbH, established in Manno (Switzerland),
intervener at first instance,
THE COURT (Chamber determining whether appeals may proceed)
composed of L. Bay Larsen, Vice-President, M.L. Arastey Sahún and J. Passer (Rapporteur), Judges,
Registrar: A. Calot Escobar,
having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, M. Szpunar,
makes the following
Order
1        By her appeal, Ms Lin Suicha asks the Court of Justice to set aside the order of the General Court of the European Union of 21 December 2022, Suicha v EUIPO – Michael Kors (Switzerland) International (MK MARKTOMI MARKTOMI) (T‑264/22, EU:T:2022:861; ‘the order under appeal’), by which the General Court dismissed Ms Suicha’s action for annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 10 March 2022 (Case R 1899/2021‑1), concerning invalidity proceedings between Ms Suicha and Michael Kors (Switzerland) International GmbH.
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 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’s decision on the request that the appeal be allowed to proceed is to be taken as soon as possible in the form of a reasoned order.
6        In support of her request that the appeal be allowed to proceed, the appellant states that her single ground of appeal, alleging infringement of Article 60(1)(a), read together with Article 8(1)(b), of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1), raises an issue that is significant with respect to the unity, consistency and development of EU law.
7        In that regard, the appellant submits, in the first place, that, by enhancing less distinctive elements of the signs at issue, while devaluing the main distinctive elements of ‘Michael Kors’ and ‘Marktomi Marktomi’ respectively, the General Court distorted the facts and thus misapplied the concept of likelihood of confusion provided for in Article 8(1)(b) of Regulation 2017/1001. Similarly, the General Court, in disregard of the case-law of the Court of Justice relating to the assessment of the similarity between two marks, focused solely on the dominant element of the mark applied for without having assessed its distinctive elements. According to the appellant, under that case-law, the assessment of the similarity between two marks must be based on the overall impression created by them, in the light of, inter alia, their distinctive elements and not only their graphical dominant components.
8        In the second place, she submits that, by finding that the signs at issue had an average degree of visual similarity and that they were phonetically similar, the General Court erred in its assessment of the likelihood of confusion.
9        In the third place, she complains that the General Court erred in finding that there is a likelihood of confusion from the point of view of the relevant public, which constitutes a misapplication of Article 8(1)(b) of Regulation 2017/1001.
10      In the fourth and last place, the appellant submits that the abovementioned errors of the General Court significantly affect the consistency, development and unity of EU trade mark law.
11      As a preliminary point, it must be recalled that it is for the appellant to demonstrate that the issues raised by her 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).
12      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 8 May 2023, Studio Legale Ughi e Nunziante v EUIPO, C‑776/22 P, EU:C:2023:441, paragraph 17).
13      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 (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).
14      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, EU:C:2023:67, paragraph 13).
15      In the present case, as regards, first of all, the arguments summarised in paragraph 7 above, based on an alleged distortion of the facts by the General Court, it should be noted that such arguments cannot, in principle, be capable, as such and even if well founded, of raising an issue that is significant with respect to the unity, consistency or development of EU law (see, by analogy, order of 7 June 2022, Magic Box Int. Toys v EUIPO, C‑194/22 P, EU:C:2022:463, paragraph 19 and the case-law cited).
16      In addition, as regards the argument relating to the alleged error of law resulting from the failure to have regard to the case-law of the Court, it must be recalled that such an argument 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 or development of EU law, since that person must comply, to that end, with all the requirements set out in paragraph 13 above (see, by analogy, order of 17 April 2023, Zaun v Praesidiad Holding and EUIPO, C‑780/22 P, EU:C:2023:294, paragraph 18 and the case-law cited). None of those requirements is met in the present case. In particular, the request that the appeal be allowed to proceed does not specify either the relevant case-law of the Court that has been disregarded or where the alleged contradiction between the case-law of the Court and the order under appeal lies, nor does it specify the concrete reasons why such a contradiction raises an issue that is significant with respect to the unity, consistency or development of EU law.
17      Next, as regards the arguments summarised in paragraphs 8 and 9 above, in so far as the appellant challenges the General Court’s assessment of the visual and phonetic similarity of the signs at issue and the overall assessment of the likelihood of confusion, it is sufficient to note that, since such assessments are factual in nature, those arguments cannot raise an issue that is significant with respect to the unity, consistency or development of EU law (see, to that effect, order of 17 April 2023, Zaun v Praesidiad Holding and EUIPO, C‑780/22 P, EU:C:2023:294, paragraph 17 and the case-law cited).
18      Last, as regards the statement referred to in paragraph 10 above, 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 13 above, how her 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.
19      The appellant must demonstrate that, independently of the issues of law invoked in the 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 scope of the judgment or order under appeal and, ultimately, that of the 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, order of 8 November 2022, Mandelay v EUIPO, C‑405/22 P, EU:C:2022:860, paragraph 17 and the case-law cited).
20      In the present case, the appellant’s mere claim that the alleged errors committed by the General Court significantly affect the consistency, development and unity of EU trade mark law is manifestly too general to constitute such a demonstration.
21      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.
22      In the light of all of the foregoing considerations, the request that the appeal be allowed to proceed must be refused.
Costs
23      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.
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 her own costs.
On those grounds, the Court (Chamber determining whether appeals may proceed) hereby orders:
1.      The appeal is not allowed to proceed.
2.      Ms Lin Suicha shall bear her own costs.
Luxembourg, 5 July 2023.
A. Calot Escobar
L. Bay Larsen
Registrar
President of the Chamber determining whether appeals may proceed
*      Language of the case: English.