ORDER OF THE COURT (Sixth Chamber)
5 September 2019
(*)
(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — EU trade mark — Opposition proceedings — Absolute grounds for refusal — Decision of the Board of Appeal to stay the proceedings and remit the case to the examiner for an examination of the absolute grounds for refusal — Appeal manifestly unfounded)
In Case C‑162/19 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 22 February 2019,
Iceland Foods Ltd, established in Deeside (United Kingdom), represented by S. Malynicz QC, S. Baran, Barrister, J. Hertzog,
J. Warner and C. Hill, Solicitors,
appellant,
the other party to the proceedings being:
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
THE COURT (Sixth Chamber),
composed of C. Toader, President of the Chamber, A. Rosas (Rapporteur) and L. Bay Larsen, Judges,
Advocate General: M. Bobek,
Registrar: A. Calot Escobar,
having regard to the decision taken, after hearing the Advocate General, to give a decision by reasoned order in accordance with Article 181 of the Rules of Procedure of the Court,
makes the following
Order
1        By its appeal, Iceland Foods Ltd seeks to have set aside the order of the General Court of the European Union of 14 December 2018, Iceland Foods v EUIPO — Íslandsstofa (INSPIRED BY ICELAND) (T‑267/18, not published, ‘the order under appeal’, EU:T:2018:1014), by which the General Court dismissed as manifestly inadmissible the action seeking annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 7 February 2018 (Case R 340/2017-5), relating to opposition proceedings between Iceland Foods and Íslandsstofa (‘the contested decision’).
2        In support of its appeal, the appellant relies on three grounds of appeal alleging, respectively, infringement of Article 71 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), of Article 72 of that regulation, and of Article 126 of the Rules of Procedure of the General Court.
The appeal
3        Pursuant to Article 181 of the Rules of Procedure of the Court, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.
4        It is appropriate to apply that provision in the present case.
5        On 7 June 2019, the Advocate General took the following position:
‘1.      In support of its appeal, brought against the order under appeal, Iceland Foods relies on three grounds.
2.      By its third ground, which it is appropriate to examine first, the appellant complains that the General Court erred in its interpretation of Article 126 of the Rules of Procedure of the General Court. According to the appellant, the General Court erred in law by declaring the action inadmissible since, by the contested decision, the Fifth Board of Appeal of EUIPO has definitely and unequivocally established its position on the existence of the absolute grounds for refusal.
3.      That ground of appeal is manifestly unfounded. According to settled case-law, noted in paragraph 15 of the order under appeal, any measure the legal effects of which are binding on, and capable of affecting the interests of the applicant by bringing about a distinct change in his legal position is an act which may be the subject of an action for a declaration that it is void. In the case of acts adopted by a procedure involving several stages,
in particular where they are the culmination of an internal procedure, in principle an act is open to review only if it is a measure definitely laying down the position of the competent institution on the conclusion of that procedure, and not a provisional measure intended to pave the way for the final decision (see, to that effect, judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraphs 9 and 10). The contested decision limits itself, first, to explaining the reasons why it is necessary to remit
the case to the examiner and, second, to identifying the absolute grounds for refusal before being examined. Contrary to the appellant’s claim, the specific examination of those grounds is explicitly left to the examiner, as is clear from the operative part of the contested decision and as noted by the General Court in paragraph 16 of the order under appeal.
4.      Therefore, the General Court was entitled to hold that the action should be dismissed as being manifestly inadmissible.
5.      Thus, it is not necessary to examine the first and second grounds of the appeal. Those grounds relating to errors allegedly committed by the Board of Appeal in applying Articles 71 and 72 of Regulation 2017/1001 cannot succeed either.
6.      In any event, those grounds are manifestly inadmissible. It follows from Article 168(1)(d) and Article 169(2) of the Rules of Procedure of the Court of Justice that an appeal must identify precisely the contested points in the grounds of the judgment which the appellant seeks to have set aside and indicate precisely the legal arguments specifically advanced in support of the appeal, failing which the appeal or ground of appeal concerned is inadmissible (see, to that effect, order of 19 March 2019, Sevenfriday v EUIPO, C‑734/18 P, not published, EU:C:2019:223, paragraph 5 (Position of Advocate General Campos Sánchez-Bordona, point 6 and the case-law cited)). Accordingly, an appeal which merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the General Court does not satisfy the requirements to state reasons under those provisions. However, the points of law examined at first instance may be argued again in the course of an appeal, provided that the appellant challenges the interpretation or application of EU law by the General Court (see, to that effect, judgment of 3 December 2015, Italy v Commission, C‑280/14 P, EU:C:2015:792, paragraph 43 and the case-law cited).
7.      I note at the outset that, in its appeal, the appellant merely reproduces certain arguments which it has put forward previously in its action before the General Court in order to establish the errors allegedly committed by the Board of Appeal. The appellant does not indicate the contested points of the order under appeal.
Furthermore, it could not be otherwise, because those arguments raise substantive issues which the General Court was not required to examine on account of the manifest inadmissibility of the action.
8.      Having regard to the foregoing, I propose that the Court dismiss the appeal as being manifestly unfounded.’
6        For the same reasons as those given by the Advocate General, the appeal must be dismissed as being manifestly unfounded.
Costs
7        Under Article 137 of the Rules of Procedure of the Court of Justice, applicable to the procedure on appeal pursuant to Article 184(1) thereof, a decision as to costs is to be given in the order which closes the proceedings. In the present case, since this order was adopted before the appeal was served on the defendant at first instance and therefore before the latter could have incurred costs, it must be held that Iceland Foods is to bear its own costs.
On those grounds, the Court (Sixth Chamber) hereby orders:
1.      The appeal is dismissed as being manifestly unfounded.
2.      Iceland Foods Ltd shall bear its own costs.
Luxembourg, 5 September 2019.
A. Calot Escobar
C. Toader
Registrar
President of the
Sixth Chamber
*      Language of the case: English.