ORDER OF THE COURT (Chamber determining whether appeals may proceed)
31 March 2022
(*)
(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‑744/21 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 2 December 2021,
Henry Cotton’s Brand Management Co. Ltd, established in Dublin (Ireland), represented by A. von Mühlendahl, C. Eckhartt and P. Böhner, Rechtsanwälte,
appellant,
the other parties to the proceedings being:
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
Industries Sportswear Co. Srl, established in Venice (Italy),
intervener at first instance,
THE COURT (Chamber determining whether appeals may proceed),
composed of L. Bay Larsen, Vice-President of the Court, N. Jääskinen and
M. Gavalec (Rapporteur), Judges,
Registrar: A. Calot Escobar,
having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, P. Pikamäe,
makes the following
Order
1        By its appeal, Henry Cotton’s Brand Management Co. Ltd seeks to have set aside the judgment of the General Court of the European Union of 22 September 2021, Henry Cotton’s Brand Management v EUIPO – Industries Sportswear (Henry Cotton’s) (T‑173/20, not published, EU:T:2021:610; ‘the judgment under appeal’), by which the General Court dismissed its action seeking annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 10 February 2020 (Joined Cases R 254/2019-2 and R 255/2019-2) concerning proceedings between Industries Sportswear and Henry Cotton’s Brand Management regarding the cancellation of entries in the register.
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 of the Court, in the situations referred to in the first paragraph of Article 58a of the
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 those rules, the Court is to rule as soon as possible on the request that the appeal be allowed to proceed, in the form of a reasoned order.
6        In support of its request that the appeal be allowed to proceed, the appellant relies on two arguments by which it submits that its appeal raises issues that are significant with respect to the unity, consistency or development of EU law which, according to the appellant, justify the appeal being allowed to proceed.
7        By its first argument, the appellant criticises, in essence, the General Court for having infringed Article 27(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 that it granted the liquidator and creditors of the insolvent intervener before the General Court, without giving reasons for doing so, the status of ‘third party’ within the meaning of that article.
8        More specifically, the appellant claims that the General Court erred in stating in paragraphs 83 and 102 of the judgment under appeal that the liquidator and creditors of the insolvent intervener are entitled to rely on the failure to enter in EUIPO’s register the transfers of the marks at issue by an agreement concluded between the intervener and Spring Holdings Sarl.
9        According to the appellant, such a finding runs counter to the case-law of the Court resulting from the judgment of 4 February 2016, Hassan (C‑163/15, EU:C:2016:71), in accordance with which Article 27(1) of Regulation 2017/1001 applies only to third parties claiming property rights in the mark. Consequently, the liquidator and the creditors of the insolvent intervener cannot be regarded as third parties within the meaning of that provision, since they do not claim property rights in the marks at issue, but claim that those marks are part of the insolvent intervener’s assets.
10      In that regard, the appellant submits that the issue of law, namely the correct interpretation and application of Article 27(1) of Regulation 2017/1001, is significant, first, for the unity of EU law. The relationship between the substantive rights of the mark and the entry of transfers in the register maintained by EUIPO and the effect of the presence or absence of such an entry is an issue that requires consistent and uniform rules. Secondly, the appellant adds that that issue is significant with respect to the consistency of EU law because the distinction between the effect of entries in the register and substantive trade mark law, illustrated by the relationship between the rules on ownership governed by Article 20 of Regulation 2017/1001 and the national law applicable under Article 19 of that regulation, on the one hand, and the protection of third parties on the basis of entries in the register, on the other, requires a coherent and consistent approach. Thirdly, the issue of law is significant for the development of EU law, since the application of the law requires an interpretation and therefore also a development of the law. The present case is the example of an unprecedented individual case requiring a decision by the Court.
11      By its second argument, alleging infringement of Article 103(1) of Regulation 2017/1001, the appellant submits that the General Court erred in law in finding, in paragraph 118 of the judgment under appeal, that EUIPO committed an obvious error in so far as it had entered the transfers of the marks at issue on 16 April 2018, after failing to enter in the register the insolvency proceedings in accordance with the liquidator’s application. Even if the definition of the obvious nature of the error, contained in paragraph 112 of that judgment, did not depart from the case-law of the Court of Justice, the error in this case is far from being considered to be obvious, since its finding requires a complex analysis of the interaction between Articles 20, 24 and 27 of Regulation 2017/1001. According to the appellant, the question of the interpretation of the concept of ‘obvious error’ is significant with respect to the unity and consistency of EU law, because it is a rare opportunity.
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 (order of 24 October 2019, Porsche v EUIPO, C‑613/19 P, EU:C:2019:905, paragraph 13 and the case-law cited).
13      Moreover, 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 (see, in particular, orders of 24 October 2019, Porsche v EUIPO, C‑613/19 P, EU:C:2019:905, paragraph 14, and of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraph 21).
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 (order of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraph 22 and the case-law cited).
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 (order of 24 October 2019, Porsche v EUIPO, C‑613/19 P, EU:C:2019:905, paragraph 16 and the case-law cited).
16      In the present case, as regards, in the first place, the line of argument summarised in paragraphs 7 to 10 of the present order, which alleges, in essence, that the General Court erred in finding that the liquidator and the creditors of the insolvent intervener were ‘third parties’ within the meaning of Article 27(1) of Regulation 2017/1001, it should be noted that the appellant identifies the error of law allegedly committed by the General Court. It also sets out arguments by which it seeks to demonstrate that the General Court’s finding raises issues that are significant with respect to the unity, consistency or development of EU law which justify the appeal being allowed to proceed.
17      In that regard, it should be recalled 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 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 arguments of a general nature (order of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraphs 27 and 28 and the case-law cited). However, that has not been demonstrated in the present request.
18      Although the appellant puts forward arguments by which it seeks to demonstrate that the appeal raises an issue that is significant with respect to the unity, consistency and development of EU law, it must be held that those rather general arguments cannot be regarded as sufficiently specific and precise for the purpose of establishing, in particular, the importance of the issue identified with respect to the unity, consistency and development of EU law.
19      As regards, specifically, the line of argument summarised in paragraph 9 of the present order, according to which the General Court failed to have regard to the case-law of the Court of Justice, it should be recalled that a general allegation that the General Court has failed to have regard to its own case-law or to that of the Court of Justice is not, in itself, sufficient to establish, in accordance with the burden of proof which lies with the appellant requesting that the 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, the appellant having to comply to that end with all the requirements set out in paragraph 14 of the present order (see, by analogy, orders of 4 June 2020, Société des produits Nestlé v Amigüitos pets & life and EUIPO, C‑97/20 P, not published, EU:C:2020:442, paragraph 21, and of 30 November 2021, Health Product Group v EUIPO, C‑483/21 P, not published, EU:C:2020:981, paragraph 22 and the case-law cited).
20      In the present case, it must be stated, first, that the appellant does not provide any information on the similarity of the situations referred to in the judgment under appeal and the judgment of the Court of Justice which has allegedly been infringed, capable of establishing the existence of the contradiction relied on (order of 13 December 2021, Abitron Germany v EUIPO, C‑589/21 P, not published, EU:C:2021:1012, paragraph 19). Secondly, the appellant does not explain precisely and clearly the reasons for which the alleged contradiction between the assessments of the General Court and the case-law of the Court of Justice relied on raises an issue that is significant with respect to the unity, consistency and development of EU law (see, to that effect, order of 30 November 2021, Health Product Group v EUIPO, C‑483/21 P, not published, EU:C:2021:981, paragraph 22).
21      In the second place, as regards the line of argument referred to in paragraph 11 of the present order, it must be noted that the appellant merely sets out the error allegedly committed by the General Court, without sufficiently explaining why that line of argument raises an issue that is significant with respect to the unity, consistency or development of EU law. The claim that it is a rare opportunity is not, in itself, likely to mean that that issue is necessarily one of significance with respect to the unity, coherence or development of EU law (see, by analogy, order of 13 December 2021, Cora v EUIPO, C‑619/21 P, not published, EU:C:2021:1011, paragraph 17).
22      In those circumstances, it must be held that the request submitted by the appellant is not such as to determine that the appeal raises issues that are significant with respect to the unity, consistency or development of EU law.
23      In the light of all of the foregoing, 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.      Henry Cotton’s Brand Management Co. Ltd shall bear its own costs.
Luxembourg, 31 March 2022.
A. Calot Escobar
L. Bay Larsen
Registrar
President of the Chamber determining whether appeals may proceed
*      Language of the case: English.