ORDER OF THE COURT (Chamber determining whether appeals may proceed)
17 October 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‑406/23 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 3 July 2023,
Arkadiusz Kaminski, residing in Etobicoke, Ontario (Canada), represented by W. Trybowski, M. Mazurek and E. Pijewska, radcowie prawni,
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, J.-C. Bonichot (Judge-Rapporteur) and L.S. Rossi, 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 his appeal, Arkadiusz Kaminski asks the Court of Justice to set aside the judgment of the General Court of the European Union of 26 April 2023, Kaminski v EUIPO – Polfarmex (SYRENA) (T‑35/22, EU:T:2023:212; ‘the judgment under appeal’) by which the General Court dismissed his action seeking alteration and, in the alternative, partial annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO), of 26 October 2021 (Joined Cases R 1952/2020-1 and R 1953/2020-1), relating to revocation proceedings between Arkadiusz Kaminski and Polfarmex S.A.
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 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 his request that the appeal be allowed to proceed, the appellant submits that the four grounds of his appeal raise issues that are significant with respect to the unity, consistency or development of EU law.
7        By his first ground of appeal, the appellant alleges that the General Court infringed his right to a fair trial, his rights of the defence and his right to be heard, enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) in so far as it refused to examine the pleas based on the failure, by the Board of Appeal, to observe the principles laid down by the Court of Justice in the judgment of 22 October 2020, Ferrari (C‑720/18 and C‑721/18, EU:C:2020:854), by reason of the res judicata of the judgment of 23 September 2020, Polfarmex v EUIPO – Kaminski (SYRENA) (T‑677/19, EU:T:2020:424), upholding in part the application for annulment of the decision of 11 July 2019 of the Second Board of Appeal of EUIPO (Joined Cases R 1840/2018-2 and R 1861/2018-2). Specifically, the General Court is alleged to have held, in paragraphs 37 and 41 of the judgment under appeal, that those pleas referred to sub-categories of ‘cars’ which had been identified in that decision and not in the decision which it was called upon to review. The appellant observes that his arguments concerning the impact of the judgment in Ferrari (C‑720/18 and C‑721/18, EU:C:2020:854 have never been examined in the course of the present proceedings, either by the Board of Appeal or by the EU judicature.
8        The appellant points out that the first ground of appeal involves the issue of the conflict between the principal rights and guarantees in the EU legal order, namely between, on the one hand, the principle of res judicata and, on the other hand, the other fundamental rights of individuals. That issue is significant with respect to the unity, consistency or development of EU law. First, it concerns the core issue of the legal protection of individuals, secondly, the Court of Justice has not yet ruled on that issue of conflict, and, thirdly, any decision by the Court of Justice on that issue will have an impact not only on the present case, but also on other future cases.
9        By his second ground of appeal, the appellant submits that the General Court infringed the principle of res judicata, since the conditions required for the application of that principle were not satisfied in the present case. In addition he claims that, in the judgment under appeal, the General Court did not examine the res judicata of the judgment of 23 September 2020, SYRENA (T‑677/19, EU:T:2020:424) in the light of the judgment in Ferrari (C‑720/18 and C‑721/18, EU:C:2020:854). Lastly, the appellant criticises the General Court for failing to note that the Board of Appeal, in the decision challenged before it, had misinterpreted the judgment of 23 September 2020, SYRENA (T‑677/19, EU:T:2020:424), by holding that the listing of the sub-categories within the category of ‘cars’ carried out by the General Court in that judgment was exhaustive.
10      According to the appellant, those various infringements of the law allegedly committed by the General Court involve issues which are significant with respect to the unity, consistency or development of EU law. First of all, an issue is raised of the interpretation of the scope of the principle of res judicata. Next, a judgment by the Court of Justice would resolve the issue of whether the judgment under appeal must be interpreted as allowing the revocation of the trade mark at issue in respect of sub-categories of ‘cars’, even though the Court of Justice opposed such sub-categorisation. Lastly, it would enable the boundaries of the judgment in Ferrari (C‑720/18 and C‑721/18, EU:C:2020:854) to be confirmed with regard to product sub-categorisation.
11      By his third ground of appeal, the appellant claims that the General Court infringed Article 15(1) and Article 51(1)(a) and (2) of Regulation (EC) No 207/2009 on the European Union trade mark (OJ 2009 L 78, p. 1) inasmuch as it distorted the evidence of genuine use of the contested mark in its assessment. Moreover, the appellant claims, the justifications provided by the General Court in this connection do not meet the requirements of a statement of reasons. He submits that it is important for the purposes of the unity and consistency of EU law to eliminate from the EU legal order decisions based on a distortion of the facts and evidence and those based on a very superficial assessment of those elements.
12      By his fourth and last ground of appeal, the appellant alleges that the General Court failed to take into account the specific features of the automotive industry inasmuch as it held, in paragraphs 62 to 67 of the judgment under appeal, that the production of cars under the contested mark depended entirely on the appellant’s will. In doing so, the General Court relied on a very restrictive interpretation of the concept of ‘proper reasons for non-use’ and infringed Article 15(1) and Article 51(1)(a) and (2) of Regulation No 207/2009. The appellant states that, by ruling on that ground of appeal, the Court of Justice will be led to provide further guidelines on that concept, which will contribute to the development of EU law. The issue concerned is one that is core for revocation proceedings and will also have an impact on numerous other disputes.
13      As a preliminary point, it must be recalled that it is for the appellant to demonstrate that the issues raised by his 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 11 July 2023, EUIPO v Neoperl, C‑93/23 P, EU:C:2023:601, paragraph 18).
14      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 11 July 2023, EUIPO v Neoperl, C‑93/23 P, EU:C:2023:601, paragraph 19).
15      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 clearly 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, 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 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 11 July 2023, EUIPO v Neoperl, C‑93/23 P, EU:C:2023:601, paragraph 20).
16      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 17 July 2023, Canai Technology v EUIPO, C‑280/23 P, EU:C:2023:596, paragraph 12).
17      In the present case, so far as concerns, in the first place, the arguments set out in paragraphs 7 and 8 above, alleging infringement of Article 47 of the Charter, it must be pointed out, without prejudice to the significant place occupied, within the EU legal order, by the rights of the defence and the right to a fair hearing, that those arguments do not satisfy the requirements set out in paragraph 15 above (see, by analogy, order of 21 March 2023, Louis Vuitton Malletier v EUIPO, C‑788/22 P, EU:C:2023:231, paragraph 16 and the case-law cited). The appellant merely sets out the errors which were allegedly made by the General Court and submits arguments of a general nature, without, however, explaining specifically why those errors, on the assumption that they have been proved, raise 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 (see, by analogy, order of 23 March 2022, Collibra v EUIPO, C‑730/21 P, EU:C:2022:208, paragraph 17).
18      As regards, specifically, the argument by which the appellant submits that the Court of Justice has never ruled on the issue of conflict he invokes, it must be stated that the fact that an issue of law has not been examined by the Court of Justice does not thereby mean that that issue is necessarily one of significance with respect to the consistency, unity or development of EU law, and the person requesting that an appeal be allowed to proceed remains bound to demonstrate that significance by providing detailed information not only on the novelty of that issue, but also on the reasons why that issue is significant having regard to those criteria (order of 15 June 2023, Zielonogórski Klub Żużlowy Sportowa v EUIPO, C‑199/23 P, EU:C:2023:560, paragraph 16 and the case-law cited). It must be stated that, in the present case, the appellant merely relies on the novelty of the issue, without providing further details.
19      In the second place, so far as concerns the arguments set out in paragraphs 9 and 10 above concerning infringement of the principle of res judicata, although the appellant invokes errors allegedly committed by the General Court, the fact remains that he merely states that such errors were made and submits arguments of a general nature, without explaining specifically why such errors, on the assumption they have been proved, raise 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.
20      In particular, in relation to the appellant’s argument alleging that the General Court misapplied the judgment of 22 October 2020, Ferrari (C‑720/18 and C‑721/18, EU:C:2020:854), it should be recalled that the claim that the General Court misapplied the relevant case-law of the Court of Justice 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 and development of EU law. To that end, the appellant must comply with all the requirements set out in paragraph 15 above (see, to that effect, order of 11 May 2023, Heinze v L’Oréal and EUIPO, C‑15/23 P, EU:C:2023:407, paragraph 19 and the case-law cited). It must be stated that, in the present case, the appellant does not explain, clearly and in detail, the reasons why the alleged contradiction between the General Court’s assessments and the Court of Justice’s case-law raises an issue that is significant with respect to the unity, consistency and development of EU law.
21      In the third place, as regards the arguments summarised in paragraph 11 above, alleging distortion of the evidence 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 (order of 5 July 2023, Suicha v EUIPO, C‑120/23 P, EU:C:2023:539, paragraph 15 and the case-law cited).
22      Moreover, as regards the argument relating to the inadequacy of the statement of reasons, it must be held that, although, as is apparent from the case-law of the Court of Justice, 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 that that appeal raises one or more issues that are significant with respect to the unity, consistency or development of EU law (see, to that effect, order of 8 March 2023, Hijos de Moisés Rodríguez González v EUIPO, C‑605/22 P, EU:C:2023:199, paragraph 21 and the case-law cited). 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. In the present case, the appellant merely relies on an alleged inadequacy in the statement of reasons without demonstrating, to the requisite legal standard, how that inadequacy raises an issue that is significant with respect to the unity and consistency of EU law.
23      In the fourth and final place, as regards the arguments set out in paragraph 12 above concerning the interpretation of the concept of ‘proper reasons for non-use’, it must be stated that the appellant, by those arguments, does not explain or, in any event, demonstrate in a manner which meets all the requirements set out in paragraph 15 above, how his appeal raises an issue which is significant with respect to the development of EU law which would justify the appeal being allowed to proceed. The appellant merely, first, states the errors allegedly made by the General Court in respect of the interpretation of the concept of ‘proper reasons for non-use’ within the meaning of Article 15(1) and Article 51(1)(a) of Regulation No 207/2009 and, secondly, asserts that a decision by the Court of Justice is required to clarify the meaning to be given to that concept, without, however, setting out specific reasons as to why the alleged infringement of those provisions raises an issue which is significant with respect to the development of EU law (see, by analogy, order of 27 January 2022, Acciona v EUIPO, C‑557/21 P, EU:C:2022:68, paragraph 18).
24      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.
25      In the light of the foregoing considerations, the request that the appeal be allowed to proceed must be refused.
Costs
26      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.
27      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 his own costs.
On those grounds, the Court (Chamber determining whether appeals may proceed) hereby orders:
1.      The appeal is not allowed to proceed.
2.      Arkadiusz Kaminski shall bear his own costs.
Luxembourg, 17 October 2023.
A. Calot Escobar
L. Bay Larsen
Registrar
President of the Chamber determining
whether appeals may proceed
*      Language of the case: English.