ORDER OF THE COURT (Chamber determining whether appeals may proceed)
15 June 2022 (*)
(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, coherence or development of EU law – Refusal to allow the appeal to proceed)
In Case C‑121/22 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 18 February 2022,
Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi, established in Nicosia (Cyprus), represented by V. Marsland, Solicitor, and C. Milbradt, Rechtsanwältin,
appellant,
the other parties to the proceedings being:
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
Fontana Food AB, established in Tyresö (Sweden),
intervener at first instance,
THE COURT (Chamber determining whether appeals may proceed),
composed of L. Bay Larsen, Vice-President of the Court, I. Jarukaitis and M. Ilešič (Rapporteur), Judges,
Registrar: A. Calot Escobar,
having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, G. Pitruzzella,
makes the following
Order
1        By its appeal, Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi, as the proprietor of the earlier EU collective word mark HALLOUMI, seeks to have set aside the judgment of the General Court of the European Union of 8 December 2021, Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO – Fontana Food (GRILLOUMI BURGER) (T‑595/19, not published, EU:T:2021:866; ‘the judgment under appeal’), by way of which the General Court dismissed its action seeking annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 19 June 2019 (Case R 1356/2018-4), upholding the dismissal of the opposition which Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi had lodged against the application made by Fontana Food AB for registration of the word sign GRILLOUMI BURGER as an EU trade mark.
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 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 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.
6        In support of its request that the appeal be allowed to proceed, the appellant submits, in essence, that its appeal raises four novel and important issues, in the eyes of the general public and of the proprietors and users of collective marks, with respect to the unity, consistency and development of EU law. In that connection, it submits that cases such as this which involve collective marks are uncommon, and that the appeal should be allowed to proceed in order to prevent those trade marks from effectively being weakened across the European Union.
7        In so far as concerns the first issue, the appellant claims that the General Court infringed Article 66 of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), in that it failed to take into account the definition and particularities of a collective mark when assessing the likelihood of confusion. More specifically, the General Court erred, in particular in paragraphs 102, 106 and 108 of the judgment under appeal, in that it referred to the word ‘halloumi’ as merely a ‘generic name of that type of cheese’ or in that it accepted the existence of a connection between the marks at issue as to the ‘concept of halloumi cheese’.
8        As regards the second and third issues, the appellant submits that the General Court, first, infringed Article 53(1)(a) of Regulation No 207/2009, read in conjunction with Article 8(1)(b) and (5) thereof and, second, failed to have regard to the case-law of the Court of Justice, namely the order of 27 April 2006, L’Oréal v OHIM (C‑235/05 P, not published, EU:C:2006:271), and the judgments of 24 May 2012, Formula One Licensing v OHIM (C‑196/11 P, EU:C:2012:314, paragraphs 40 to 47); of 8 November 2016, BSH v EUIPO (C‑43/15 P, EU:C:2016:837); 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); and of 11 June 2020, China Construction Bank v EUIPO (C‑115/19 P, EU:C:2020:469).
9        In particular, the second issue concerns the matter of whether, in the light of paragraph 64 of the judgment under appeal, the proprietor of an earlier EU collective mark may, in opposition or cancellation proceedings, presume that its mark has a certain distinctive character by relying on the judgment of 24 May 2012, Formula One Licensing v OHIM (C‑196/11 P, EU:C:2012:314, paragraphs 40 to 47) or whether it must again prove the distinctive character of that mark. In that connection, the appellant criticises the General Court for departing from the case-law of the Court of Justice, first, by attributing undue importance to distinctive character; second, by factoring it into the comparison of the signs; and, third, by finding, in paragraph 72 of the judgment under appeal, without stating reasons, that the earlier collective mark HALLOUMI has a ‘descriptive meaning’.
10      The third issue relates, in essence, to the scope of protection of the collective mark in the event that the latter may be protected separately as a protected designation of origin or protected geographical indication. The appellant disputes the General Court’s apparent suggestion that qualification for registration of an EU trade mark depends on non-qualification for protection as a protected designation of origin or protected geographical indication, and criticises it for having validated, in that regard, the Opinion of Advocate General Kokott in Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO (C‑766/18 P, EU:C:2019:881).
11      The fourth and final issue concerns the question whether the General Court’s inconsistent and illogical findings may be accepted as a sound basis for a judicial decision. In the present case, the appellant calls into question, in particular, the General Court’s findings in paragraphs 70, 78 and 99 of the judgment under appeal.
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 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).
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 and 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 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraph 21 and the case-law cited).
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 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 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).
15      Consequently, 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, in so far as concerns the line of argument referred to in paragraphs 6 to 11 of the present order, according to which the General Court, in essence, disregarded the particularities of a collective mark and committed certain errors when assessing the likelihood of confusion, it should be observed that a person requesting that an appeal be allowed to proceed must, in accordance with the burden of proof which lies with him or her, comply with all the requirements set out in paragraph 14 above in order to establish that that appeal raises an issue that is significant with respect to the unity, consistency or development of EU law. In the present case, the appellant has failed to comply with all those requirements.
17      The appellant has failed to set out clearly and precisely the grounds on which its appeal is based. Although it claims that the General Court made certain errors, it has failed to provide sufficiently clear and precise explanations to enable the Court of Justice to understand what the errors of law allegedly made by the General Court are, and does not indicate the extent to which such errors had an effect on the outcome of the judgment under appeal.
18      Moreover, although the appellant has set out the issues which, in its view, are important for the general public, it has failed to specify how those issues are significant with respect to the unity, consistency or development of EU law. In that regard, it merely provides general arguments, such as the novelty of the issues or the uncommon nature of cases concerning collective marks, without, however, putting forward any concrete arguments specific to the present case in order to prove the significance of those questions in the light of those criteria.
19      Furthermore, in so far as the appellant seeks to call into question the factual assessment made by the General Court when assessing the likelihood of confusion between the marks at issue, suffice it to note that such an argument cannot, in any event, raise an issue that is significant with respect to the unity, consistency or development of EU law (see, to that effect, order of 23 November 2021, Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO, C‑345/21 P, not published, EU:C:2021:951, paragraph 19).
20      As regards, more specifically, the argument summarised in paragraph 8 of the present order, alleging failure to have regard to the case-law of the Court, it must be stated that, as regards the judgment of 24 May 2012, Formula One Licensing v OHIM (C‑196/11 P, EU:C:2012:314), although the appellant specifies the paragraphs of that judgment which have allegedly been disregarded, it does not explain exactly what that failure consists in. As regards the other rulings of the Court on which it relies, the appellant has failed to identify the paragraphs thereof which have allegedly been disregarded, and it has not provided sufficient information regarding the similarity of the situations referred to in those rulings to make it possible to establish the existence of the contradiction relied on.
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 appeal should not be allowed to proceed.
Costs
23      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.
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 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, 15 June 2022.
A. Calot Escobar
L. Bay Larsen
Registrar
President of the Chamber determining whether appeals may proceed
*      Language of the case: English.