ORDER OF THE COURT OF JUSTICE
25 January 2024 (*)
(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‑553/23 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 1 September 2023,
CEDC International sp. z o.o., established in Oborniki Wielkopolskie (Poland), represented by M.J. Falkowski, adwokat, and M. Fijałkowski, A. Młoczkowska and K. Tobiasz-Dumania, radcy prawni,
appellant,
the other parties to the proceedings being:
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
Underberg AG, established in Dietlikon (Switzerland),
intervener at first instance,
THE COURT (Chamber determining whether appeals may proceed),
composed of L. Bay Larsen, Vice-President of the Court, F. Biltgen and N. Wahl (Rapporteur), Judges,
Registrar: A. Calot Escobar,
having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, J. Kokott,
makes the following
Order
1        By its appeal, CEDC International sp. z o.o. asks the Court of Justice to set aside the judgment of 28 June 2023, CEDC International v EUIPO – Underberg (Shape of a blade of grass in a bottle) (T‑145/22, EU:T:2023:365; ‘the judgment under appeal’), by which the General Court dismissed the appellant’s action for annulment in part of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 22 December 2021 (Case R 1954/2020-5), concerning opposition proceedings between CEDC International and Underberg.
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 the Rules of Procedure, 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 the two grounds of its appeal, alleging, first, infringement of Article 8(3) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) and, second, infringement of Article 36 of the Statute of the Court of Justice of the European Union, raise issues that are significant with respect to the unity, consistency and development of EU law.
7        As regards the first ground, which is subdivided into two complaints, the appellant submits that the General Court infringed Article 8(3) of Regulation No 40/94 by limiting its application, first, solely to cases where the agency or representative relationship arises only by virtue of a relationship entered into directly by the parties and, second, and more specifically, to cases in which the earlier rights invoked in the opposition were expressly identified in the written contract forming such a relationship.
8        That ground allegedly raises several issues that are significant with respect to the unity, consistency and development of EU law, which have not yet been exhaustively examined by the Court of Justice.
9        These are, first, the assessment of the nature of the agency or representative relationship from the perspective of the ratio legis of Article 8(3) of Regulation No 40/94; second, the interpretation of the rules for determining whether a business relationship might be regarded as imposing a duty of trust and loyalty; and, third, the standard of proof that must be applied when assessing implicit relations and whether that standard of proof requires that the mark in question be explicitly specified in the contractual agreements forming the basis of the parties’ relationship.
10      As regards the second ground, which is also subdivided into two complaints, the appellant complains that the General Court infringed Article 36 of the Statute of the Court of Justice of the European Union. First, it incorrectly held, without stating adequate reasons, that the failure of the Board of Appeal of EUIPO to examine the grounds of opposition based on Article 8(3) of Regulation No 40/94 in respect of the earlier right relied on in the notice of opposition as a ‘mark filed by an agent’ has no bearing on the lawfulness of the decision of the Board of Appeal of EUIPO or on the outcome of the dispute. A lack of proper reasoning as such constitutes an issue that is significant with respect to the unity, consistency and development of EU law.
11      Second, the General Court accepted and endorsed a selective examination of the facts limited to the existence of a direct contractual agreement between the parties in its assessment of whether there was an agency or representative relationship between the parties. According to the appellant, the issue of the standard of examination appropriate for assessing the existence of an agency or representative relationship between the parties is an issue that is significant with respect to the unity, consistency and development of EU law.
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 (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).
13      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).
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 (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).
15      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 17 July 2023, Canai Technology v EUIPO, C‑280/23 P, EU:C:2023:596, paragraph 12).
16      In the present case, as regards, in the first place, the arguments set out in paragraphs 7 to 9 and 11 of the present order, it must be noted that, although the appellant invokes an error of law allegedly made by the General Court, it does not show to the requisite legal standard or, a fortiori, demonstrate, in a manner that complies with all of the requirements set out in paragraph 14 above, how its appeal raises 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.
17      In that regard, it should be borne in mind that 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 scope of the judgment or order under appeal and, ultimately, that of its appeal. In order to demonstrate that that is the case, it is necessary to establish both the existence and significance of such issues by means of concrete evidence specific to the particular case, and not simply of arguments of a general nature (order of 17 July 2023, Puma v EUIPO, C‑94/23 P, EU:C:2023:598, paragraph 20 and the case-law cited).
18      In the present case, the appellant’s claims that, as a result of alleged errors by the General Court, it is appropriate, in the interests of the unity, consistency and development of EU law, for the Court of Justice to clarify the rules relating to the assessment of the nature of the agency or representative relationship from the point of view of the ratio legis of Article 8(3) of Regulation No 40/94, the rules for determining whether a business relationship may be regarded as imposing a duty of trust and loyalty, the standard of proof required in the assessment of implicit relationships and, finally, the appropriate standard of examination required for assessing the existence of an agency or representative relationship between the parties, are manifestly too general to demonstrate that that is the case.
19      As far as concerns, in the second place, the argument set out in paragraph 8 above, to the effect that the Court has not yet ruled exhaustively on the issues raised, it is sufficient to recall that the fact that an issue of law has not been examined by the Court does not thereby mean that that issue is necessarily one of significance with respect to the unity, consistency 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 in relation to those criteria (order of 27 October 2023, Wallmax v EUIPO, C‑495/23 P, EU:C:2023:824, paragraph 18). However, that significance has not been demonstrated in the present request since the appellant merely makes a general assertion that the Court has not yet ruled exhaustively on the issues concerned.
20      In the third place, as regards the argument summarised in paragraph 10 of the present order, alleging a failure to state reasons in the judgment under appeal, the Court finds that the appellant does not provide the reasons why the failure to state reasons for that judgment which it alleges raises an issue that is significant with respect to the unity, consistency or development of EU law. While it is true that, as is apparent from the case-law of the Court of Justice, an absence of or an inadequate statement of reasons constitutes an error of law which may be invoked in the context of an appeal, the determination as to whether the appeal is allowed to proceed remains subject to specific conditions consisting, for the appellant, in demonstrating, as referred to in paragraph 14 of the present order, that that appeal raises one or more issues that are significant with respect to the unity, consistency or development of EU law (see, by analogy, order of 17 July 2023, Puma v EUIPO, C‑94/23 P, EU:C:2023:598, paragraph 23).
21      In those circumstances, it must be held that 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.
22      In the light of the foregoing, 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.      CEDC International sp. z o.o. shall bear its own costs.
Luxembourg, 25 January 2024.
A. Calot Escobar
L. Bay Larsen
Registrar
President of the Chamber determining whether appeals may proceed
*      Language of the case: English.