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‑762/21 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 10 December 2021,
St. Hippolyt Holding GmbH, established in Dielheim (Germany), represented by M. Gail, Rechtsanwalt,
appellant,
the other parties to the proceedings being:
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
Preduzeće za proizvodnju, unutrašnju i spoljnu trgovinu Elephant Co. d.o.o., established in Belgrade (Serbia),
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, T. Ćapeta,
makes the following
Order
1        By its appeal, St. Hippolyt Holding GmbH seeks to have set aside the judgment of the General Court of the European Union of 20 October 2021, St. Hippolyt v EUIPO – Elephant (Strong like nature) (T‑352/20, not published, EU:T:2021:720; ‘the judgment under appeal’), by which the General Court dismissed its action seeking annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 27 March 2020 (Case R 1909/2019‑1), concerning opposition proceedings between Preduzeće za proizvodnju, unutrašnju i spoljnu trgovinu Elephant Co. d.o.o. and St. Hippolyt Holding.
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 the 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 the 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 of Justice 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 three arguments, by which it submits that its appeal raises issues that are significant with respect to the unity, consistency or development of EU law.
7        By its first argument, the appellant submits that Article 58a of the Statute of the Court of Justice of the European Union is inapplicable ratione temporis and that its right to have its case handled impartially and fairly, as enshrined in Article 41(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’), has been infringed.
8        By its second argument, the appellant submits that the General Court, by incorrectly interpreting Article 8(1)(b) 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), erred in finding that there was a likelihood of confusion between the marks at issue.
9        In that regard, it notes that, by holding, in paragraphs 35 to 54 of the judgment under appeal, that the marks at issue are similar, the General Court failed to have regard to its own case-law arising from the judgment of 12 May 2021, Metamorfoza v EUIPO – Tiesios kreivės (MUSEUM OF ILLUSIONS) (T‑70/20, not published, EU:T:2021:253). In that judgment, the General Court found that the word element common to the two signs at issue had no meaning for the public and, therefore, denied any likelihood of confusion between those signs. According to the appellant, the same considerations apply equally to the comparison of the marks in the present case which are, visually, as dissimilar as the signs in that judgment of the General Court. However, the General Court failed to take that into account in the judgment under appeal.
10      Furthermore, the appellant claims that although the General Court considered that the relevant public is the public at large, it is necessary to consider that its level of attention is enhanced in so far as the veterinary products at issue must be purchased exclusively through veterinarians, that is to say professionals. Moreover, even if the products compared are similar, all being health products, their distribution channels are different and independent of each other. Furthermore, the appellant submits that the word elements ‘strong like nature’ and ‘strong nature’ in the mark applied for and the earlier mark, respectively, are without distinctive character and, therefore, only the figurative elements are relevant to the comparison of those marks. Given that those elements are different, there can be no likelihood of confusion between the marks at issue.
11      By its third argument, the appellant claims that, in so far as the General Court failed to take into account the decision of the German Patent and Trade Mark Office, the approach adopted in the judgment under appeal is incorrect. In the appellant’s view, in order to achieve full legal harmonisation of trade mark systems and procedures, decisions of national trade mark offices are also to be taken into account in the decision of EUIPO.
12      The appellant claims that those arguments raise a significant issue for the unity, coherence and development of EU law, namely having to take into account the decisions of national offices or courts when assessing the similarity of signs. Furthermore, the appellant submits that it follows from the judgment under appeal that the case-law on the handling of the comparison of signs consisting of several words and graphic elements is not uniform. It is therefore necessary for the Court to deliver a decisive judgment on the principles for assessing the similarity between such signs consisting of several words and signs consisting of a single word.
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 (order of 24 October 2019, Porsche v EUIPO, C‑613/19 P, EU:C:2019:905, paragraph 13 and the case-law cited).
14      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, order of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraph 21 and the case-law cited).
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 (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).
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 (order of 24 October 2019, Porsche v EUIPO, C‑613/19 P, EU:C:2019:905, paragraph 16 and the case-law cited).
17      In the present case, as regards, in the first place, the argument referred to in paragraph 7 of the present order, it should be noted that the appellant raises an alleged inapplicability ratione temporis of Article 58a of the Statute of the Court of Justice of the European Union and an infringement of Article 41(1) of the Charter, without putting forward the slightest evidence in support of that argument. Consequently, that argument cannot succeed (see, to that effect, order of 1 September 2021, 12seasons v EUIPO, C‑211/21 P, not published, EU:C:2021:694, paragraphs 11 and 16).
18      In the second place, concerning the line of argument summarised in paragraphs 8 to 10 of the present order, it should be noted that, by that line of argument, the appellant seeks, in essence, to call into question the factual assessments made by the General Court as to the comparison of the signs. Such a line of argument is not, in principle, likely to raise an issue that is significant with respect to the unity, consistency or development of EU law (see, to that effect, order of 10 November 2021, Comercializadora Eloro v EUIPO, C‑415/21 P, not published, EU:C:2021:924, paragraph 20).
19      In the third place, as regards the argument set out in paragraph 11 of the present order, it should be noted that the explanations provided by the appellant are not sufficiently clear and precise as to enable the Court of Justice to understand the nature of the error of law allegedly committed by the General Court. The appellant merely claims that the General Court should have taken into account the decision of the German Patent and Trade Mark Office, without identifying either the subject matter of that decision or its connection with the present case, and without specifying the extent to which the failure to take that decision into consideration had an effect on the outcome of the judgment under appeal. Thus, it must be held that the appellant does not meet all the requirements set out in paragraph 15 above.
20      In the fourth and last place, as regards the argument summarised in paragraph 12 of the present order, it must be pointed out that the mere assertion that a decisive judgment of the Court is necessary in so far as the case-law on the handling of the comparison of signs consisting of several words and graphic elements is not uniform, does not meet the requirements set out in paragraph 15 of the present order. That argument is general in nature and fails to provide any information on the concrete reasons why such a fact, even if established, raises an issue that is significant with respect to the unity, consistency or development of EU law (see, to that effect, order of 13 December 2021, Abitron Germany v EUIPO, C‑589/21 P, not published, EU:C:2021:1012, paragraph 22).
21      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.
22      In the light of all 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.      St. Hippolyt Holding GmbH 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.