ORDER OF THE COURT (Chamber determining whether appeals may proceed)
3 September 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‑334/24 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 6 May 2024,
DEC Technologies BV, established in Enschede (Netherlands), represented by R. Brtka, Rechtsanwalt,
appellant,
the other parties to the proceedings being:
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
Tehnoexport d.o.o. Inđija,
established in Inđija (Serbia),
intervener at first instance,
THE COURT (Chamber determining whether appeals may proceed)
composed of L. Bay Larsen, Vice-President of the Court, F. Biltgen and N. Wahl (Rapporteur), Judges,
Registrar: A. Calot Escobar,
having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, J. Kokott,
makes the following
Order
1        By its appeal, DEC Technologies BV asks the Court of Justice to set aside the judgment of the General Court of the European Union of 6 March 2024, DEC Technologies v EUIPO– Tehnoexport (DEC FLEXIBLE TECHNOLOGIES and Representation of a square with curves) (T‑59/23 and T‑68/23, EU:T:2024:148; ‘the judgment under appeal’), by which the General Court dismissed the appellant’s actions for annulment of the decisions of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 6 November 2022 (Case R 2009/2021-5), and of 30 November 2022 (Case R 2012/2021-5), concerning invalidity proceedings between Tehnoexport d.o.o. Inđija and DEC Technologies.
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        Under 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, 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’s decision on the request that the appeal be allowed to proceed is to be taken 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 appeal raises two issues that are significant with respect to the unity, consistency and development of EU law.
7        In the first place, the appellant submits that the appeal raises a substantive issue relating to the interpretation and application of Article 59(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).
8        The appellant argues that the Court of Justice has, as far as can be seen, not yet dealt with the specific question, raised by its appeal, if the intention to protect legitimate rights and interests associated with
the
trade mark application precludes the assumption of bad faith. In particular, the Court has not yet determined whether an application for registration of a mark may be a legitimate defensive measure against dishonest conduct on the part of a business partner that is or was
in breach of contract or of good faith.
9        According to the appellant, in order to establish whether a trade mark has been filed in bad faith all the relevant factors of the individual case must be taken into account. Following that general assessment, bad faith is excluded where it is established that the applicant is seeking registration of the mark in order to promote its own commercial activities. The intervener at first instance acted in breach of a contract and in bad faith by using signs which were closely linked to the appellant. Consequently, it must be held that the appellant’s intention at the time of filing the application for registration of the marks at issue met a legitimate objective, namely to protect the essential function of its marks and the signs associated with the appellant.
10      In the second place, the appellant submits that the appeal raises a procedural issue relating to the interpretation, first, of Article 96(1) of Regulation 2017/1001, and, second, of Article 41(2) and the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
11      Although the applicant agrees that EUIPO has, under Article 96(1) of Regulation 2017/1001, a discretion regarding the organisation of oral proceedings, it submits that such discretion must nevertheless be subject to review. In the present case, the Board of Appeal’s discretion was reduced since it did not have sufficient and uncontested information to give a ruling and only the examination of the witnesses requested by the appellant would have made it possible to resolve those contradictions. By upholding the decision of the Board of Appeal of EUIPO despite the error vitiating that decision, the General Court infringed the appellant’s right to be heard and its right to a fair hearing, recognised in the two abovementioned provisions of the Charter.
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, 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).
15      A request that an appeal be allowed to proceed which does not contain the information mentioned in the preceding paragraph 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 28 May 2024, Cruelty Free Europe v ECHA, C‑79/24 P, EU:C:2024:430, paragraph 19).
16      In the present case, as regards the line of argument summarised in paragraphs 7 to 9 of the present order, it must be stated that the appellant does not identify either the paragraphs of the judgment under appeal which it seeks to call into question or the error of law allegedly committed by the General Court. The appellant merely submits that its appeal raises a substantive issue concerning the interpretation and application of Article 59(1)(b) of Regulation 2017/1001, without, however, explaining the nature of the error allegedly committed by the General Court. Moreover, the appellant does not set out the specific reasons why that issue of law is significant with respect to the unity, consistency or development of EU law, such as to justify the appeal being allowed to proceed.
17      It follows that that argument does not satisfy the requirements set out in paragraph 14
above.
18      As regards the arguments summarised in paragraphs 10 and 11 above, in so far as the appellant claims that the Board of Appeal of EUIPO erred and exceeded the discretion which it enjoys under Article 96(1) of Regulation 2017/1001, it should be recalled that only errors of law resulting from the judgment under appeal are capable of raising an issue that is significant with respect to the unity, consistency and development of EU law (order of 30 January 2024, Schneider v EUIPO, C‑614/23 P, EU:C:2024:102, paragraph 18 and the case-law cited).
19      In so far as the appellant claims that the General Court, in upholding the Board of Appeal’s decision, erred and infringed Article 96(1) of Regulation 2017/1001, Article 41(2) and the second paragraph of Article 47 of the Charter, it should be noted that that line of argument does not comply with the requirements set out in paragraph 14
above.
20      The appellant, first, does not identify the paragraphs of the judgment under appeal which it seeks to call into question and, second, merely states that the General Court allegedly erred in law, without explaining to the requisite legal standard or, in any event, demonstrating how such an error, assuming it were established, raises issues that are significant with respect to the unity, consistency or development of EU law which would justify allowing the appeal to proceed (see, to that effect, order of 26 September 2023, Mordalski v EUIPO (C‑321/23 P, EU:C:2023:705, paragraph 14 and the case-law cited).
21      In addition, in so far as the appellant claims that the two issues of substance and procedure raised by its appeal have not yet been definitively settled by the case-law of the Court of Justice,
it is sufficient to recall that the fact that an issue of law has not been examined by the Court does not thereby mean that that issue is necessarily one of significance with respect to the unity, consistency or development of EU law, and the person requesting that an appeal be allowed to proceed remains bound to demonstrate that significance by providing detailed information not only on the novelty of that issue, but also on the reasons why that issue is significant in relation to those criteria (order of 15 December 2023, Sanity Group v EUIPO, C‑533/23 P, EU:C:2023:1002, paragraph 21 and the case-law cited).
22      However, that significance has not been demonstrated in the present request since the appellant merely makes a general assertion that the Court has not yet ruled on the issues of substance and procedure raised by its appeal.
23      In those circumstances, it must be held that the request submitted by the appellant 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.
24      In the light of the foregoing considerations, the appeal should not be allowed to proceed.
Costs
25      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.
26      Since the present order was adopted before the appeal was served on the other parties to the proceedings and, therefore, before those parties 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.      DEC Technologies BV shall bear its own costs.
Luxembourg, 3 September 2024.
A. Calot Escobar
L. Bay Larsen
Registrar
President of the Chamberdetermining whether appeals may proceed
*      Language of the case: English.