ORDER OF THE COURT (Chamber determining whether appeals may proceed)
15 December 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‑520/23 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 10 August 2023,
UGA Nutraceuticals Srl, established in Gubbio (Italy), represented by J. Graffer, A. Ottolini and M. Riva, avvocati,
appellant,
the other party to the proceedings being:
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
THE COURT (Chamber determining whether appeals may proceed),
composed of L. Bay Larsen, Vice-President of the Court, M. Safjan and M. Jääskinen (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, UGA Nutraceuticals Srl asks the Court of Justice to set aside the judgment of the General Court of the European Union of 28 June 2023, UGA Nutraceuticals v EUIPO – BASF (OMEGOR) (T‑495/22, EU:T:2023:359; ‘the judgment under appeal’), by which 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 10 June 2022 (Case R 1168/2021-4), relating to opposition proceedings between UGA Nutraceuticals and BASF AS.
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, in the situations referred to in the first paragraph of Article 58a of the abovementioned 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 as soon as possible on the request that the appeal be allowed to proceed, 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 its appeal raises issues that are significant with respect to the unity, consistency and development of EU law.
7        In the first place, the appellant complains that the General Court misapplied 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), in that it failed to have regard to the previous case-law of the EU Courts.
8        Thus, according to the appellant, the General Court erred in finding that pharmaceutical products in the form of Omega-3 fatty acids intended for the treatment of specific diseases (myocardial infarction and hypertriglyceridaemia) are partially identical or, in any event, very similar to goods such as dietetic food and beverages, nutritional supplements, food for babies, vitamin preparations and veterinary preparations. It maintains that that conclusion is contrary to the fundamental principles of the European Union and leads to an unjustified extension of the protection granted to the earlier signs.
9        In that regard, the appellant submits that it is important that the Court of Justice rule on the interpretation of Article 8(1)(b) of Regulation 2017/1001, in particular as regards the meaning of the words ‘identity or similarity of the goods’ in connection with the goods in Class 5 of the Nice Classification. It argues that such a ruling by the Court would be significant for the purpose of confirming that the Nice Classification is merely an ancillary tool and cannot, in itself, determine the characteristics of the goods at issue, and for the purpose of avoiding any risk of misinterpretation of the rules and principles of EU law.
10      In the second place, the appellant submits that the General Court contradicts itself in the judgment under appeal and that certain parts of that judgment are vitiated by a failure to state reasons.
Findings of the Court
11      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).
12      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 determine, 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).
13      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).
14      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 13 June 2023, Grupa ‘LEW’ v EUIPO, C‑38/23 P, EU:C:2023:494, paragraph 16).
15      In the present case, it must be stated that the arguments by which the appellant seeks to demonstrate that the issues of law on which the appeal is based are significant with respect to the unity, consistency and development of EU law do not meet the requirements set out in paragraph 13 above.
16      In the first place, as regards the appellant’s arguments summarised in paragraphs 6 to 9 above, it must be stated that, in its request that the appeal be allowed to proceed, the appellant, contrary to the requirements laid down in paragraph 13 above, does not set out clearly and in detail the grounds on which the appeal is based. Although it relies – albeit in a somewhat vague manner – on certain errors of law allegedly committed by the General Court, relating to the infringement of Article 8(1)(b) of Regulation 2017/1001, and on an infringement of the case-law of the EU Courts in that respect, the fact remains that, in any event, it does not specify exactly the nature of the errors of law allegedly committed by the General Court, nor does it identify the rulings of the Court of Justice or the General Court alleged to have been infringed. Furthermore, the appellant does not identify the paragraphs of the judgment under appeal which it seeks to call into question.
17      In the second place, as regards the arguments referred to in paragraph 10 above, it must be stated that the explanations provided by the appellant in that regard are not sufficiently clear and precise as to enable the Court of Justice to understand the nature of the errors of law allegedly committed by the General Court (see, to that effect, order of 31 March 2022, St. Hippolyt v EUIPO, C‑762/21 P, EU:C:2022:255, paragraph 19). The appellant merely claims that the General Court contradicts itself in the judgment under appeal and that certain parts of that judgment are vitiated by a failure to state reasons, without providing further details (see, by analogy, order of 11 May 2023, Heinze v L’Oréal and EUIPO, C‑15/23 P, EU:C:2023:407, paragraph 21).
18      In those circumstances, it must be held that the request submitted by the appellant does not establish that the appeal raises an issue that is significant with respect to the unity, consistency or 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 party to the proceedings and, therefore, before it 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.      UGA Nutraceuticals Srl shall bear its own costs.
Luxembourg, 15 December 2023.
A. Calot Escobar
L. Bay Larsen
Registrar
President of the Chamber determining whether appeals may proceed
*      Language of the case: English.