ORDER OF THE COURT (Chamber determining whether appeals may proceed)
8 November 2024 (*)
( Appeal – Community design – 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‑439/24 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 20 June 2024,
VDS Czmyr Kowalik sp.k., established in Świętochłowice (Poland), represented by A. Pilecka, adwokat,
appellant,
the other parties to the proceedings being:
M&T 1997, a.s., established in Dobruška (Czech Republic),
applicant at first instance,
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
THE COURT (Chamber determining whether appeals may proceed)
composed of T. von Danwitz, Vice-President of the Court, F. Biltgen, President of the First Chamber, and M.L. Arastey Sahún (Rapporteur), President of the Fifth Chamber,
Registrar: A. Calot Escobar,
having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, J. Richard de la Tour,
makes the following
Order
1        By its appeal, VDS Czmyr Kowalik sp.k. asks the Court of Justice to set aside the judgment of the General Court of the European Union of 10 April 2024, M&T 1997 v EUIPO – VDS Czmyr Kowalik (Door and window handles) (T‑654/22, EU:T:2024:223; ‘the judgment under appeal’), by which the General Court annulled the decision of the Third Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 29 August 2022 (Case R 29/2022-3), relating to invalidity proceedings between VDS Czmyr Kowalik and M&T 1997, a.s.
The request that the appeal be allowed to proceed
2        In accordance with Article 170b(1) and (3) of the Rules of Procedure of the Court, the latter is to rule on the request that the appeal be allowed to proceed, as soon as possible, in the form of a reasoned order.
3        In support of its request that the appeal be allowed to proceed, the appellant submits that the two grounds of its appeal, alleging infringement of Article 6(1) and (2) and of Article 25(1)(b) of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1), raise issues that are significant with respect to the unity, consistency or development of EU law.
4        By its first ground of appeal, alleging infringement of the provisions of Article 25(1)(b) in conjunction with Article 6(1)(b) of Regulation No 6/2002, the appellant criticises the General Court for having carried out, in paragraphs 55 to 57 of the judgment under appeal, an incorrect assessment of the overall impression produced by the contested design on the informed user. The appellant submits, inter alia, that the General Court determined the features of that design in the light of the mechanical use of the product, namely, in the present case, a door handle, without taking into account its aesthetic function.
5        In so doing, the General Court infringed its own case-law according to which aesthetic use is not a negligible factor and which gives precedence to the most striking visual features of a design over its functional features. Although the appellant accepts, in essence, that the recent case-law of the General Court emphasises functional features of a design, the appellant cites a number of judgments in which the General Court took account of the visibility of certain features of the products, including the judgment of 25 April 2013, Bell & Ross v OHIM – KIN (Wristwatch case) (T‑80/10, EU:T:2013:214, paragraphs 136, 137 and 144). The appellant submits that, in that judgment, the General Court did not take into consideration only the mechanical use of watches, namely products which, as with those at issue in the case under appeal, have both a practical and aesthetic function, but also emphasised the visual and aesthetic aspects of the designs concerned, attaching greater importance to the resulting features.
6        In that regard, the appellant submits that, in the judgment under appeal, the General Court, contrary to the case-law relied on, attached greater importance to functional features and to those which are perceived only when the product is used (perception by touch) than to features linked to the aesthetic use of the product.
7        According to the appellant, the issue of the taking into account of the visual and aesthetic aspect of designs in the overall impression produced by those designs on the informed user is an issue that is significant with respect to the unity, consistency or development of EU law, in so far as it would enable the Court to clarify whether, in the case of designs intended to be applied to products the function of which is both practical and decorative, greater importance can be attached to features which have a functional role which are perceived through mechanical use of the product rather than through a visual examination of that product. The appellant submits that a failure to answer that question leads to a clear lack of clarity and consistency. It considers that the judgment under appeal could have the effect of minimising the aesthetic features of the design in favour of its functional features as well as applying a narrower view of the concept of ‘use’ of the Community design in the context of the assessment of the overall impression produced by the design on the informed user.
8        By its second ground of appeal, alleging infringement of the provisions of Article 25(1)(b) in conjunction with Article 6(2) of Regulation No 6/2002, the appellant complains that the General Court infringed the latter provision, in that it failed to consider the high degree of freedom
enjoyed by the designer of a design and failed to attribute, to less visible features of the design, the capacity to confer individual character on it. Thus, the General Court failed to have regard to its case-law, arising in particular from the judgment of 10 November 2021, Eternit v EUIPO – Eternit Österreich (Building panels) (T‑193/20, EU:T:2021:782, paragraphs 59 and 60), in that it wrongly concentrated on the features linked to the functionality of the design. Furthermore, the General Court carried out its assessment without taking into account the fact that creative freedom is a factor which makes it possible to measure the importance of the features at issue in the light of the overall impression produced by the design.
9        The appellant submits that, although the General Court refers to the need to take account of the freedom of the designer of a design, it failed to qualify the importance of the various features in the light of the high degree of freedom enjoyed by the designer. In that regard, the appellant submits that the General Court wrongly concluded that features which are not very visible and linked to a technical function played a decisive role in the determination of the individual character of the design.
10      The appellant submits that that issue is significant with respect to the unity, consistency or development of EU law, in so far as
a failure to have regard to the principle which requires the importance of the features of the design to be qualified would result in the criterion of the freedom of its designer being deprived of any interest in the assessment of the individual character of a design.
11      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.
12      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, where it raises an issue that is significant with respect to the unity, consistency or development of EU law.
13      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.
14      As a preliminary point, it should be noted that 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 (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).
15      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 (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).
16      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 (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).
17      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 8 May 2024, Wyrębski v QC and Others, C‑689/23 P, EU:C:2024:397, paragraph 21).
18      In the present case, as regards, in the first place, the line of argument relating to the first ground of appeal, summarised in paragraphs 4 to 7 of the present order, it must be stated that the appellant seeks, in reality, to call into question the factual assessment made by the General Court when examining the features of appearance of the product concerned. Such a line of argument 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 (order of 5 May 2021, Tinnus Enterprises v EUIPO, C‑29/21 P, EU:C:2021:357, paragraph 17).
19      As regards, more specifically, the line of argument summarised in paragraph 7 of the present order, it should be noted that the fact that an issue of law has not been examined by the Court of Justice does not mean that that issue is necessarily one of significance with respect to the unity, consistency or development of EU law, since the appellant remains bound to demonstrate that significance by providing detailed information regarding not only the novelty of that issue, but also the reasons for that issue’s significance in relation to the development of EU law (order of 19 February 2024, Balaban v EUIPO, C‑651/23 P, EU:C:2024:140, paragraph 19). Such a demonstration is not apparent from the request that the appeal be allowed to proceed in the present case, since the appellant merely states, in a general manner, that that lacuna in the case-law leads to a lack of clarity and consistency.
20      In the second place, as regards the appellant’s line of argument relating to the second ground of appeal, alleging, in essence, that the General Court disregarded its own case-law, which is summarised in paragraphs 8 to 10 of the present order, it should be noted that such a line of 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. To that end, the person making that request
must comply with all the requirements set out in paragraph 16 of the present order (see, to that effect, order of 30 April 2024, Transport Werk v EUIPO, C‑102/24 P, EU:C:2024:400, paragraph 18). In the context of that second ground of appeal, as set out in the request that the appeal be allowed to proceed, the appellant has not specified the contested paragraphs of the judgment under appeal and has not provided any indication as to the similarity between, on the one hand, the situation which is the subject of that judgment and, on the other hand, situations referred to in the case-law which, in the appellant’s view,
has been disregarded by the General Court.
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 the foregoing considerations, the appeal should not be allowed to proceed.
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 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.      VDS Czmyr Kowalik sp.k. shall bear its own costs.
Luxembourg, 8 November 2024.
A. Calot Escobar
T. von Danwitz
Registrar
President of the Chamber determining whether appeals may proceed
*      Language of the case: English.