ORDER OF THE COURT (Chamber determining whether appeals may proceed)
6 March 2025 (*)
( 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‑775/24 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 11 November 2024,
Dekoback GmbH, established in Helmstadt-Bargen (Germany), represented by V. von Moers, lawyer,
appellant,
the other parties to the proceedings being:
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
DecoPac Inc., established in Anoka (United States),
intervener at first instance,
THE COURT (Chamber determining whether appeals may proceed),
composed of T. von Danwitz, Vice-President of the Court, N. Jääskinen and A. Arabadjiev (Rapporteur), Judges,
Registrar: A. Calot Escobar,
having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, A. Rantos,
makes the following
Order
1        By its appeal, Dekoback GmbH asks the Court of Justice to set aside the judgment of the General Court of the European Union of 4 September 2024, Dekoback v EUIPO – DecoPac (DECOPAC) (T‑166/23, EU:T:2024:584; ‘the judgment under appeal’), by which the General Court dismissed Dekoback’s action for annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 30 January 2023 (Case R 754/2022-4), concerning invalidity proceedings between DecoPac Inc. and Dekoback.
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        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 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.
Arguments of the appellant
6        In support of its request that the appeal be allowed to proceed, the appellant submits that the arguments relied on in support of that request raise issues that are significant with respect to the unity, consistency or development of EU law.
7        In particular, the appellant states that the General Court made an error of law in maintaining the manifestly incorrect registration of inedible decorations for cakes and pastries in Class 30 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended. It also criticises the General Court for having regarded that classification as serving only a purely administrative purpose, whereas, according to the appellant, that concept was abandoned in the legislative amendment that led to the adoption 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).
8        In addition, the appellant claims that the goods and services in respect of which registration of a mark is applied for or effected must be sufficiently clear and precise to enable the competent authorities and economic operators to determine the extent of protection of the mark, in accordance with Article 33(2) of Regulation 2017/1001.
9        On the basis of those factors, the appellant submits that it is necessary that the Court of Justice clarify, first, whether the manifestly incorrect registration of a mark may remain in the register of marks maintained by EUIPO, even though that registration leads to an inaccuracy in that register. It takes the view that it is also necessary that the Court of Justice clarify, second, whether marks registered prior to the adoption of Article 33(2) of Regulation 2017/1001 take precedence over marks registered subsequently, in so far as earlier provisions were less specific and marks registered prior to that adoption were not subject to the same requirements as marks registered subsequently.
10      In addition, the appellant criticises the General Court for having disregarded the case-law of the Court of Justice and its own case-law relating to the burden of proof and the requirements relating to the submission of evidence of an applicant’s bad faith when filing the trade mark application. It also deems it necessary that the Court of Justice provide clarification in that respect, in particular, as to whether there is bad faith when the applicant is aware that its trade mark application is incorrect or covers goods or services in classes for which it has no intention of using the mark.
Findings of the Court
11      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 11 July 2023, EUIPO v Neoperl, C‑93/23 P, EU:C:2023:601, paragraph 18 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 (order of 11 July 2023, EUIPO v Neoperl, C‑93/23 P, EU:C:2023:601, paragraph 19 and the case-law cited).
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, 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 11 July 2023, EUIPO v Neoperl, C‑93/23 P, EU:C:2023:601, paragraph 20 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 (order of 9 January 2024, Yayla Türk v EUIPO, C‑611/23 P, EU:C:2024:3, paragraph 13 and the case-law cited).
15      In the present case, it should be noted, from the outset, that the present request that the appeal be allowed to proceed does not set out sufficiently clearly and precisely the grounds on which the appeal is based. Nor does the appellant identify with the necessary precision and clarity the issues of law raised by each ground.
16      As regards the arguments summarised in paragraphs 7 to 10 of the present order, it must be held that, although the appellant sets out some errors of law allegedly made by the General Court, it does not identify any paragraph of the judgment under appeal which it seeks to call into question, thereby depriving, in the present case, its request that the appeal be allowed to proceed of its proper context and, therefore, rendering it insufficiently precise (see, by analogy, order of 28 May 2024, Cruelty Free Europe v ECHA, C‑79/24 P, EU:C:2024:430, paragraph 21 and the case-law cited).
17      The appellant thus confines itself to submitting arguments of a general nature, without setting out in a clear and precise manner the specific reasons why the alleged errors raise issues that are significant with respect to the unity, consistency or development of EU law that would justify the appeal being allowed to proceed.
18      Moreover, as regards the argument summarised in paragraph 10 of the present order, alleging failure to have regard to the case-law of the Court of Justice and of the General Court, it must be held that, although the appellant refers to paragraphs of some judgments of the Court of Justice and of the General Court, it does not provide sufficient information concerning the similarity of the situations described in those judgments to which it refers which would make it possible to establish the existence of the contradiction relied on. Nor does the appellant provide any information as to the specific reasons for which such a contradiction raises an issue that is significant with respect to the unity, consistency or development of EU law (see, by analogy, order of 5 May 2021, Deutsche Post v EUIPO, C‑5/21 P, EU:C:2021:359, paragraph 19).
19      In those circumstances, 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.
20      In the light of the foregoing considerations, the appeal should not be allowed to proceed.
Costs
21      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.
22      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.      Dekoback GmbH shall bear its own costs.
Luxembourg, 6 March 2025.
A. Calot Escobar
T. von Danwitz
Registrar
President of the Chamber determining whether appeals may proceed
*      Language of the case: English.