ORDER OF THE COURT (Chamber determining whether appeals may proceed)
18 January 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‑500/23 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 4 August 2023,
Groupe Canal+, established in Issy-les-Moulineaux (France), represented by M. Georges-Picot and C. Cuny, avocates,
appellant,
the other parties to the proceedings being:
DDR Kultur UG (haftungsbeschränkt), established in Berlin (Germany),
applicant at first instance,
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, P.G. Xuereb and I. Ziemele (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, Groupe Canal+ asks the Court of Justice to set aside the judgment of the General Court of the European Union of 7 June 2023, DDR Kultur v EUIPO – Groupe Canal+ (THE PLANET) (T‑47/22, ‘the judgment under appeal’, EU:T:2023:311), by which the General Court annulled the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 25 November 2021 (Case R 2385/2020-2), relating to opposition proceedings between Groupe Canal+ and DDR Kultur UG (haftungsbeschränkt).
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 of Justice 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.
6        In support of its request that the appeal be allowed to proceed, the appellant submits that the issues of law raised by its appeal, relating to infringements 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 of the relevant case-law, are significant with respect to the unity, consistency and development of EU law.
7        In the first place, the appellant submits that the General Court infringed Article 8(1)(b) of Regulation 2017/1001, in that it incorrectly assessed the principle of interdependence between the various factors to be taken into account, in particular the similarity of the signs and that of the goods or services covered and, therefore, incorrectly assessed the likelihood of confusion on the part of the relevant public, by focusing solely on the visual aspects of the signs, namely their low degree of visual similarity and their alleged significant figurative elements. According to the appellant, unlike the Board of Appeal, which correctly applied the principle of interdependence and the relevant case-law, the General Court infringed that principle, its own case-law relating to the global assessment of the likelihood of confusion and the case-law of the Court of Justice, namely the judgments of 11 November 1997, SABEL (C‑251/95, EU:C:1997:528); of 1 June 2022, Krasnyj Octyabr v EUIPO – Pokój (Pokój TRADYCJA JAKOŚĆ KRÓWKA SŁODKIE CHWILE Z DZIECIŃSTWA TRADYCYJNA RECEPTURA) (T‑355/20, EU:T:2022:320); and of 1 March 2023, Crush Series Publishing v EUIPO – Mediaproduccion (The Crush Series) (T‑295/22, EU:T:2023:97). In addition, the appellant maintains that, when assessing the similarity of the signs and the likelihood of confusion, in paragraphs 103, 104 and 158 of the judgment under appeal, the General Court contradicted itself and did not assess in the same way all the relevant elements of the marks at issue, namely their figurative and word elements.
8        According to the appellant, in that context, the judgment under appeal undermines the unity and consistency of EU law as regards the assessment of the likelihood of confusion.
9        In the second place, the appellant submits that the General Court distorted the facts when assessing the distinctive character of the signs and their visual similarity. More specifically, it maintains that the General Court, in paragraph 76 of the judgment under appeal, applied the case-law according to which, for the purposes of assessing the distinctive character of an element of a mark, an assessment must be made of the greater or lesser capacity of that element to identify the goods or services for which the mark was registered. However, it argues that, in so doing, the General Court disregarded the circumstances in which that case-law was applied; such case-law cannot be applied so broadly to figurative elements of a composite mark that also comprises a word element, particularly where none of the parties adduces any evidence regarding the potential impact of the figurative element on the sign.
10      According to the appellant, in that context, the question whether composite signs which include a word element must be assessed primarily by taking into account that element, which the average consumer will always remember more easily, is significant with respect to the consistency and development of EU law.
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 17 July 2023, Canai Technology v EUIPO, C‑280/23 P, EU:C:2023:596, paragraph 12).
15      In the present case, as regards, in the first place, the arguments summarised in paragraphs 7 and 8 above, it must be stated that, while it is true that the appellant identifies errors of law allegedly committed by the General Court, the fact remains that the appellant does not explain, in accordance with the requirements set out in paragraph 13 above, or, in any event, demonstrate how such errors, assuming that they are established, raise issues that are significant with respect to the unity, consistency or development of EU law. The appellant does not set out the specific reasons in support of the significance of the issue raised, but merely relies, in the present case, on an argument of a general nature, namely that the assessment of the likelihood of confusion carried out by the General Court in the judgment under appeal undermines the unity and consistency of EU law.
16      Furthermore, as regards the appellant’s line of argument alleging that the General Court infringed its own case-law and that of the Court of Justice, it must be stated that such a line of argument is not, in itself, sufficient to establish, in accordance with the burden of proof which lies with the appellant 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. To that end, the appellant must comply with all the requirements set out in paragraph 13 above (see, by analogy, order of 9 November 2023, Consulta v EUIPO, C‑443/23 P, EU:C:2023:859, paragraph 16). In the present case, the appellant, contrary to those requirements, does not identify the paragraphs of the judgments relied on as relevant case-law that are alleged to have been infringed. Nor, moreover, does it provide sufficient information regarding the similarity of the situations referred to in the case-law to make it possible to establish the existence of the alleged contradictions (see, by analogy, order of 14 July 2022, Ignacio Carrasco v EUIPO, C‑247/22 P, EU:C:2022:591, paragraph 14 and the case-law cited).
17      In the second place, as regards the line of argument set out in paragraphs 9 and 10 above, it is sufficient to note that, in so far as the appellant relies on an alleged distortion of the facts by the General Court, such a line of argument cannot, in principle, be capable, as such and even if well founded, of raising an issue that is significant with respect to the unity, consistency or development of EU law (see, by analogy, order of 5 July 2023, Suicha v EUIPO, C‑120/23 P, EU:C:2023:539, paragraph 15 and the case-law cited).
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 all 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.      Groupe Canal+ shall bear its own costs.
Luxembourg, 18 January 2024.
A. Calot Escobar
L. Bay Larsen
Registrar
President of the Chamber
determining whether appeals may proceed
*      Language of the case: English.