ORDER OF THE COURT (Chamber determining whether appeals may proceed)
2 February 2024 (*)
(Appeal – EU trade mark – Cancellation proceedings – 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‑598/23 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 26 September 2023,
Apart sp. z o.o., established in Suchy Las (Poland), represented by J. Gwiazdowska, radca prawny,
appellant,
the other parties to the proceedings being:
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
S.
Tous, SL, established in Manresa (Spain),
intervener at first instance,
THE COURT (Chamber determining whether appeals may proceed)
composed of L. Bay Larsen, Vice-President of the Court, J.-C. Bonichot (Rapporteur) and L.S. Rossi, Judges,
Registrar: A. Calot Escobar,
having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, A. Collins,
makes the following
Order
1        By its appeal, Apart sp. z o.o. asks the Court to set aside the judgment of the General Court of the European Union of 26 July 2023, Apart v EUIPO – S.
Tous (Representation of the outline of a bear) (T‑638/21, EU:T:2023:434, ‘the judgment under appeal’), by which the General Court dismissed its action for the annulment and alteration of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 30 July 2021 (Case R 1437/2020-5), relating to proceedings for the revocation of an EU trade mark between Apart and S.
Tous, SL.
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 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 that the three grounds of its appeal raise issues that are significant with respect to the unity, consistency and development of EU law.
7        By its first ground of appeal, the appellant alleges that the General Court infringed Article 21(1)(e) and Article 22(1)(b) of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation (EU) 2017/1001 of the European Parliament and of the Council on the European Union trade mark, and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104, p. 1), in so far as it refused, in paragraph 24 of the judgment under appeal, the appellant’s request to fix a date earlier than the date of filing of the application for revocation, on the ground that the Cancellation Division’s decision had become final with regard to the goods in respect of which the application for revocation had been upheld and that that point had not been disputed by the appellant before the Board of Appeal. Accordingly, the General Court erred in failing to take into account the appellant’s lack of interest in bringing proceedings against EUIPO’s decision in so far as it granted the appellant’s application for partial revocation of the trade mark.
8        It is significant with respect to the unity, consistency and development of EU law
to determine whether a trade mark may be revoked on different dates for different goods and services, where justified by the circumstances. It is necessary for the Court to clarify that issue, both for the users of the EU trade mark system and for national courts, in order to avoid any risk of legal uncertainty.
9        By its second ground of appeal, the appellant submits that the General Court infringed Article 15(1)(a) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), in so far as it confirmed, in paragraph 125 of the judgment under appeal, the Board of Appeal’s finding that the use of the contested mark in forms which differ slightly from the registered sign does not alter its distinctive character. The evidence produced in order to demonstrate genuine use of the contested mark concerns other forms of the registered mark which cannot be regarded as equivalent to that mark.
10      The appellant submits that, in the case of a simple figurative mark which does not deviate from the customs of the sector and corresponds to the shape of the goods, the extent to which the changes made constitute alterations which do not alter its distinctive character is an important issue for the unity, consistency or development of EU law, particularly where the relevant public is highly attentive and the market is saturated by the form of the mark. In addition, the appellant raises questions, first, as to whether the acceptance of those amendments entails the extension of the monopoly conferred by the mark and, secondly, whether the resulting legal uncertainty is compatible with the principles of the rule of law and free competition. The answers to those questions would have an impact on the interpretation and development of EU law by harmonising the assessments made by courts in that regard.
11      By its third ground of appeal, the appellant submits that, in order to declare inadmissible the plea alleging infringement 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), in paragraphs 59 and 60 of the judgment under appeal, the General Court relied on incorrect assessments, which were not explained or proved during the proceedings and are not common knowledge, and thus infringed the second sentence of Article 94(1) of that regulation and the right to a fair hearing. Therefore, the question to what extent the General Court may rely on matters which have not been explained or proved during the proceedings, even if they are not common knowledge, 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 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 (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, secondly, the specific reasons why such a contradiction raises an issue that is significant with respect to the unity, consistency or development of EU law (see 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 9 November 2023, Consulta v EUIPO, C‑443/23 P, EU:C:2023:859, paragraph 15).
16      In the present case, as regards the arguments set out in paragraphs 7 to 10 above, concerning the fixing of the date of revocation and the use of the mark in a form other than that for which it was registered, it should be noted that, although the appellant identifies errors of law allegedly committed by the General Court, the fact remains that the appellant merely states that such errors were made and puts forward arguments of a general nature, without setting out the specific reasons why such errors, assuming that they are established, raise issues that are significant with respect to the unity, consistency or development of EU law that would justify the appeal being allowed to proceed.
17      The appellant, in essence, merely invokes a risk of legal uncertainty without, however, specifying to the requisite legal standard why the issues raised are significant with respect to the unity, consistency or development of EU law. Therefore, it must be held that it did not comply with the requirements set out in paragraph 14 above.
18      As regards the arguments summarised in paragraph 11 above, alleging infringement of the second sentence of Article 94(1) of Regulation 2017/1001 and of the right to a fair hearing, it should be pointed out, without prejudice to the significant place occupied, within the EU legal order, by the right to a fair hearing, that those arguments do not satisfy the requirements set out in paragraph 14 above (see, by analogy, order of 17 October 2023, Kaminski v EUIPO, C‑406/23 P, EU:C:2023:787, paragraph 17). Although the appellant identifies the errors of law allegedly committed by the General Court, it does not explain to the requisite standard or, in any event, show how such errors of law, assuming that they are established, raise an issue that is significant with respect to the unity, consistency or development of EU law that would justify the appeal being allowed to proceed. In that regard, it must be pointed out that the appellant merely states that it is significant with respect to the unity, consistency and development of EU law to determine the extent to which the General Court may rely on matters which are not common knowledge, and have not been explained or proved during the proceedings, without giving further details.
19      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.
20      In the light of the foregoing considerations, the request that the appeal be allowed to proceed must be refused.
Costs
21      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.
22      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.      Apart sp. z o.o. shall bear its own costs.
Luxembourg, 2 February 2024.
A. Calot Escobar
L. Bay Larsen
Registrar
President of the Chamber determining whether appeals may proceed
*      Language of the case: English.