ORDER OF THE COURT (Chamber determining whether appeals may proceed)
6 July 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, consistency or development of EU law – Refusal to allow the appeal to proceed)
In Case C‑253/22 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 11 April 2022,
Calrose Rice, established in Sofia (Bulgaria), represented by H. Raychev, адвокат,
appellant,
the other parties to the proceedings being:
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
Ricegrowers Ltd, established in Leeton, New South Wales (Australia),
intervener at first instance,
THE COURT (Chamber determining whether appeals may proceed),
composed of L. Bay Larsen, Vice-President of the Court, S. Rodin and L.S. Rossi (Rapporteur), Judges,
Registrar: A. Calot Escobar,
having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, M. Campos Sánchez-Bordona,
makes the following
Order
1        By its appeal, Calrose Rice asks the Court of Justice to set aside the order of the General Court of the European Union of 11 February 2022, Calrose Rice v EUIPO – Ricegrowers (Sunwhite) (T‑459/21, not published, EU:T:2022:73; ‘the order under appeal’), by which the General Court dismissed its action for annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 4 June 2021 (Case R 2465/2020-4), relating to opposition proceedings between Ricegrowers Ltd and Calrose Rice.
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 those rules, 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 its request that the appeal be allowed to proceed, the appellant submits that both grounds relied on in support of its appeal raise issues that are significant with respect to the unity, consistency or development of EU law.
7        By its first ground of appeal, alleging infringement of the first sentence of Article 94(1), as well as of Article 95(1) 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), the appellant complains that the General Court erred in holding that the Board of Appeal of EUIPO, first, had not failed to examine the issue of the comparison of the goods concerned and to give reasons for its decision on that issue, and, secondly, had provided sufficient reasons supporting its conclusion that the signs at issue were visually highly similar.
8        The appellant claims that that ground of appeal raises an issue of law concerning the nature and extent of the obligation on the Board of Appeal of EUIPO to give proper reasons for its decisions, as well as the possibility for the Board of Appeal to presume that an applicant for an EU trade mark implicitly agrees with the comparison of the goods made by the Opposition Division of EUIPO. It claims that that issue is significant with respect to the unity, consistency and development of EU law, in that a response would clarify the scope of EUIPO’s obligation to state reasons and the conditions under which EUIPO is empowered to presume the position of a party challenging one of its decisions.
9        By its second ground of appeal, alleging infringement of Article 8(1)(b) of Regulation 2017/1001, the appellant complains that the General Court, first, erred in finding that it had not adduced evidence and arguments in support of its position on the visual differences between the signs at issue, the distinctive character of the additional graphical elements of the mark applied for, and the absence of a likelihood of confusion, and, secondly, erred in upholding the finding of the Board of Appeal of EUIPO that the signs at issue were visually highly similar, without taking into account the appellant’s counter-arguments.
10      The appellant claims that that ground of appeal raises the issue whether, first, it is for the applicant for an EU trade mark to adduce the evidence that the relative grounds for refusal of registration set out in that provision in support of its action against a decision of EUIPO were not present and whether, secondly, when assessing the likelihood of confusion within the meaning of that provision, EUIPO and the General Court must take account of any visual differences which they may have found between the signs at issue. It claims that that issue is significant with respect to the unity, consistency and development of EU law in so far as a response to that issue would clarify the scope of the burden of proof borne by the party challenging an EUIPO decision, and increase the predictability, efficiency and fairness of proceedings before EUIPO.
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 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 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).
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 (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 (order of 6 May 2022, Inditex v EUIPO, C‑65/22 P, not published, EU:C:2022:369, paragraph 14 and the case-law cited).
15      In the present case, in any event, the arguments, by which the appellant seeks to demonstrate that the issues of law raised by the grounds on which the appeal is based are significant with respect to the unity, consistency and development of EU law, do not satisfy the requirements set out in paragraph 13 of the present order.
16      In accordance with the burden of proof which lies with an appellant requesting that an appeal be allowed to proceed, the appellant must demonstrate that, independently of the issues of law invoked in its 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 judgment under appeal and, ultimately, its appeal. In order to demonstrate that that is the case, it is necessary to establish both the existence and significance of those issues by means of concrete evidence specific to the particular case, and not simply arguments of a general nature (order of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraphs 27 and 28 and the case-law cited).
17      It must be stated that the appellant,
which
fails to identify precisely the paragraphs of the order under appeal which it intends to challenge,
does not set out the specific reasons why the errors of law allegedly committed by the General Court raise issues that are significant with respect to the unity, consistency or development of EU law that justify the appeal being allowed to proceed. Rather, the appellant merely puts forward general arguments in that regard.
18      In those circumstances, it must be held that the appellant’s request does not establish that the appeal raises an issue that is significant with respect to the unity, consistency and development of EU law.
19      In the light of the foregoing considerations, the request that the appeal be allowed to proceed must be refused.
Costs
20      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.
21      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.      Calrose Rice shall bear its own costs.
Luxembourg, 6 July 2022.
A. Calot Escobar
L. Bay Larsen
Registrar
President of the Chamber determining whether appeals may proceed
*      Language of the case: English.