ORDER OF THE COURT (Chamber determining whether appeals may proceed)
11 July 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‑248/24 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 5 April 2024,
Puma SE,
established in Herzogenaurach (Germany), represented by M. Schunke and P. Trieb, Rechtsanwälte,
appellant,
the other parties to the proceedings being:
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
Puma Srl,
established in Settimo Milanese (Italy),
intervener at first instance,
THE COURT (Chamber determining whether appeals may proceed),
composed of L. Bay Larsen, Vice-President of the Court, O. Spineanu-Matei 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, A. Rantos,
makes the following
Order
1        By its appeal, Puma SE asks the Court of Justice to set aside the order of the General Court of the European Union of 25 January 2024, Puma v EUIPO – Puma (puma soundproofing) (T‑266/23, EU:T:2024:38; ‘the order under appeal’), by which the General Court dismissed Puma’s action for annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 27 February 2023 (Case R 1399/2021-1), concerning opposition proceedings between Puma and Puma Srl.
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        The third paragraph of Article 58a of that statute provides that 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 of Justice 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 and is to take the form of a reasoned order.
6        In support of its request that the appeal be allowed to proceed, the appellant submits that the grounds of its appeal, alleging infringement of Article 8(5) 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), and of Article 41(1) and (2) and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), raise issues that are significant with respect to the unity, consistency and development of EU law.
7        In the first place, the appellant claims that the General Court failed to carry out a global and exhaustive assessment of the relevant criteria for determining whether there was a link between the marks at issue on the part of the relevant public and thus failed to have regard to the interdependent nature of those criteria, as is apparent from the case-law of the Court of Justice resulting, in particular, from the judgment of 24 March 2011, Ferrero v OHIM (C‑552/09 P, EU:C:2011:177, paragraph 64). In particular, the General Court failed to state the reason why, in paragraphs 47 and 52 of the order under appeal, it found that, for the purpose of determining whether such a link exists, the lack of similarity between the goods in question cannot be offset by other factors such as, in particular, the earlier mark’s high degree of reputation and its highly distinctive character. The appellant submits that a detailed analysis of the interaction of those relevant factors is necessary and should be reflected in the grounds of the General Court’s decision.
8        According to the appellant, the General Court’s failure to carry out such an assessment raises an issue that is significant with respect to the unity, consistency and development of EU law, because of its effects on the protection of marks with a reputation, which is an issue that goes beyond the present proceedings.
9        In the second place, the appellant complains that the General Court erred in law by departing from the principle established by the Court of Justice in the judgment of 27 November 2008, Intel Corporation (C‑252/07, EU:C:2008:655, paragraphs 51 to 56), according to which, the greater the reputation and distinctive character of a mark, the more likely it is that a link between the marks at issue will be established on the part of the relevant public, even if it does not establish a link between the goods and services in question. In that regard, the appellant takes the view that marks enjoying a high degree of reputation with the public are particularly exposed to the risk that third parties will attempt to take unfair advantage of their reputation and distinctive character. Those marks should therefore benefit from increased protection, as this would create an economic incentive for innovation and investment. Thus, the question arises as to whether the proprietor of a highly reputed and distinctive mark, whose reputation extends beyond the relevant public, must prove the existence of a link between the marks at issue, or whether it must be assumed that the public will establish such a link.
10      According to the appellant, that issue is significant with respect to the unity, consistency and development of EU law, on account of the increased need to protect marks with a high reputation against unfair advantage being taken of their distinctive character and reputation, and of the need to ensure observance of the rights of the proprietors of those marks, first, to effective judicial protection, in particular, to a fair trial as regards the allocation of the burden of proof, and, second, to sound administration.
11      In the third place, the appellant complains that the General Court failed to examine a 2018 survey, according to which the relevant public establishes a link between the marks at issue, and thus infringed the appellant’s right to effective judicial protection guaranteed by Article 47 of the Charter. The question thus arises whether, by failing to take note of the findings of that survey, the General Court infringed the appellant’s right to a fair hearing and its right to be heard. The question also arises as to the conditions in which it may be assumed that the General Court did not take into consideration the observations of a party and whether standards comparable to those of Germany must be applied in the context of the right to be heard.
12      According to the appellant, those issues are significant with respect to the unity, consistency and development of EU law.
13      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).
14      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).
15      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).
16      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).
17      In the present case, as regards, in the first place, the arguments set out in paragraphs 7 to 10 of this order, it must be noted that, although the appellant describes the error of law allegedly made by the General Court, it does not explain, to the requisite legal standard, or, a fortiori, demonstrate, in a manner that complies with all of the requirements set out in paragraph 15 of this order, 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.
18      It should be recalled that, 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 such issues by means of concrete evidence specific to the particular case, and not simply by means of arguments of a general nature (orders of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraphs 27 and 28, and of 11 July 2023, EUIPO v Neoperl, C‑93/23 P, EU:C:2023:601, paragraphs 30 and 31).
19      The appellant’s mere assertions that its appeal raises a number of issues that are significant with respect to the unity, consistency and development of EU law because of their effects on the protection of marks with a high reputation and the increased need for their protection, and the need to ensure observance of the rights of the proprietors of those marks to effective judicial protection and sound administration, are manifestly too general to constitute such a demonstration (see, by analogy, order of 17 July 2023, Puma v EUIPO, C‑145/23 P, EU:C:2023:597, paragraph 22).
20      As regards, in the second place, the arguments summarised in paragraphs 11 and 12 of this order, in so far as the appellant seeks to call into question the General Court’s assessment of the evidence produced before it, suffice it to recall that such arguments cannot, in principle, be capable, as such and even if well founded, of raising an issue that is significant with respect to the unity, consistency or development of EU law (see, by analogy, orders of 17 January 2022, AM.VI. and Quinam v EUIPO, C‑599/21 P, EU:C:2022:32, paragraph 19, and of 17 October 2023, Kaminski v EUIPO, C‑406/23 P, EU:C:2023:787, paragraph 21).
21      In so far as the appellant claims that the order under appeal is vitiated by incomplete reasoning, it must be borne in mind that, although it is true, as is apparent from the case-law of the Court of Justice, that failure to state reasons or an inadequate statement of reasons constitutes an error of law which may be relied on in the context of an appeal, the determination as to whether the appeal is allowed to proceed nevertheless remains subject to specific conditions consisting, for the appellant, in demonstrating, as referred to in paragraph 15 of this order, that that appeal raises one or more issues that are significant with respect to the unity, consistency or development of EU law. 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 by arguments of a general nature (see, by analogy, order of 8 May 2024, Wyrębski
v QC and Others, C‑689/23 P, EU:C:2024:397, paragraph 25). However, the appellant does not demonstrate how the alleged incomplete reasoning of the order under appeal raises an issue that is significant with respect to the unity, consistency or development of EU law.
22      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.
23      In the light of the foregoing considerations, the appeal should not be allowed to proceed.
Costs
24      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.
25      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.      Puma SE shall bear its own costs.
Luxembourg, 11 July 2024.
A. Calot Escobar
L. Bay Larsen
Registrar
President of the Chamber
determining whether appeals may proceed
*      Language of the case: English.