ORDER OF THE COURT (Chamber determining whether appeals may proceed)
18 October 2023 (*)
(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‑345/23 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 1 June 2023,
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,
Brooks Sports, Inc., established in Seattle, Washington (United States),
intervener at first instance,
THE COURT (Chamber determining whether appeals may proceed)
composed of L. Bay Larsen, Vice-President of the Court, M. Ilešič (Rapporteur) and D. Gratsias, Judges,
Registrar: A. Calot Escobar,
having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, M. Campos Sánchez-Bordona,
makes the following
Order
1        By its appeal, Puma SE asks the Court of Justice to set aside the judgment of the General Court of the European Union of 22 March 2023, Puma v EUIPO – Brooks Sports (Representation of a band with an acute angle), (T‑5/22, EU:T:2023:150; ‘the judgment under appeal’), whereby the General Court dismissed its action for annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 29 October 2021 (Case R 910/2021-4), relating to opposition proceedings between Puma SE and Brooks Sports, Inc..
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 the Statute of the Court of Justice of the European Union 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        Article 170a(1) of the Rules of Procedure provides that, 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.
Arguments of the appellant
6        In support of its request that the appeal be allowed to proceed, the appellant submits that the sole ground of its appeal, alleging infringement of 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), and Article 8(5) of that regulation, raises an issue that is significant with respect to the unity, consistency and development of EU law.
7        More specifically, the appellant criticises the General Court for erring in law in its assessment of the similarity of the figurative marks at issue, in that it held that the two signs were ‘very different’ in the perception of the public. In order to arrive at such a finding, the General Court carried out, in paragraph 44 of the judgment under appeal, a very detailed examination of the signs at issue, thereby disregarding the principles applicable to the comparison of signs and the previous decision-making practice of EUIPO in that regard.
8        In this respect, the appellant relies on, first, the case-law of the Court under which the global assessment of the likelihood of confusion in relation to the marks at issue must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components. In that regard, the perception of an average consumer, who normally perceives a mark as a whole and does not proceed to analyse its various details, plays a decisive role in the global appreciation of that likelihood of confusion (judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35 and the case-law cited).
9        Next, the appellant puts forward that, in order to assess the degree of similarity between the marks concerned, their degree of visual, phonetic and conceptual similarity must be determined and, where appropriate, the importance to be attached to those different elements evaluated, taking account of the category of goods or services in question and the circumstances in which they are marketed. (see, to that effect, judgment of 22 June 1999, Lloyd Schuhfabrik Meyer, C‑342/97, EU:C:1999:323, paragraph 27).
10      Lastly, the appellant points out, while relying on settled case-law of the General Court, that two marks are similar when, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects (judgments of 23 October 2002, Matrazen Concord v OHIM – Hukla Germany (MATRAZEN), T‑6/01, EU:T:2002:261, paragraph 30; of 26 January 2006, Volkswagen v OHIM – Nacional Motor (Variant), T‑317/03, EU:T:2006:27, paragraph 46; and of 26 February 2015, Lithuania
v
Commission, T‑365/13, EU:T:2015:113, paragraph 32).
11      According to the appellant, it is therefore necessary, for the purposes of the unity, consistency and development of EU law, that the Court specify that the relevant public focuses on the overall impression produced by the signs at issue on the basis of the imperfect picture that the public has kept in its mind, with the result that minor differences do not allow the conclusion that the signs at issue are different overall.
Findings of the Court
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 clearly set out the
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 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 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 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 17 July 2023, Canai Technology v EUIPO, C‑280/23 P, EU:C:2023:596, paragraph 12).
16      In the present case, as regards the arguments summarised in paragraphs 7 to 11 of the present order, relating to the failure, by the General Court, to have regard for the principles applicable to the assessment of the similarity of the signs at issue, it must be recalled that the claim that the General Court disregarded the relevant case-law of the Court of Justice and its own case-law is not, in itself, sufficient to establish, in accordance with the burden of proof which lies with the person requesting that an 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 must comply to that end with all the requirements set out in paragraph 14 of the present order (order of 17 July 2023, Canai Technology v EUIPO, C‑280/23 P, EU:C:2023:596, paragraph 13 and the case-law cited).
17      First, in so far as the appellant seeks to call into question the General Court’s assessment of the facts, it should be recalled that such a line of argument cannot demonstrate that the appeal raises an issue that is significant with respect to the unity, consistency or development of EU law (see, to that effect, order of 13 July 2023, Hecht Pharma v EUIPO, C‑142/23 P, EU:C:2023:600, paragraph 18). Secondly, it is clear that, furthermore, the appellant confines itself to claiming contradictions between the assessments of the General Court and the case-law of the General Court and the Court of Justice relating to the comparison of the signs at issue, without, however, explaining, precisely and clearly, the reasons for which such contradictions raise an issue that is significant with respect to the unity, consistency or development of EU law.
18      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 and development of EU law.
19      In the light of the foregoing considerations, the appeal should not be allowed to proceed.
Costs
20      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.
21      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, 18 October 2023.
A. Calot Escobar
L. Bay Larsen
Registrar
President of the Chamber determining whether appeals may proceed
*      Language of the case: English.