ORDER OF THE COURT (Chamber determining whether appeals may proceed)
11 May 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 – Appeal not allowed to proceed)
In Case C‑15/23 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 17 January 2023,
Arne-Patrik Heinze, residing in Hamburg (Germany), represented by N. Dauskardt, Rechtsanwalt,
appellant,
the other parties to the proceedings being:
L’Oréal, established in Paris (France),
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, D. Gratsias and Z. Csehi (Rapporteur), Judges,
Registrar: A. Calot Escobar,
having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, N. Emiliou, makes the following
Order
1        By his appeal, Arne-Patrik Heinze asks the Court of Justice to set aside the judgment of the General Court of the European Union of 9 November 2022, L’Oréal v EUIPO – Heinze (K K WATER), (T‑610/21, not published, EU:T:2022:700; ‘the judgment under appeal’), by which the General Court dismissed the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 21 June 2021 (Case R 2327/2020-2), relating to opposition proceedings between Mr Heinze and L’Oréal.
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        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.
6        In support of his request that the appeal be allowed to proceed, the appellant submits that the sole ground of his appeal, divided into four parts, 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), raises issues that are significant with respect to the unity and consistency of EU law that justifies, according to him, the appeal being allowed to proceed.
7        By the first part of the sole ground of appeal, the appellant, by relying on the judgment of 22 October 2015, BGW (C‑20/14, EU:C:2015:714, paragraph 35), complains that the General Court made an error of law by failing to take into account, in the context of the comparison of the signs, the dominant character of the capital letter ‘K’ in the marks at issue and by failing to deal with the issue of the impact of that dominant character on, first, the effect of the signs on consumers and, second, their similarity.
8        The appellant adds that the error of law made by the General Court raises the fundamental issue of how the dominant elements of the marks should be treated when those elements consist of a single letter. The fact that the General Court establishes that an element is dominant, but fails to have regard to that dominance, risks undermining the case-law of the Court of Justice and thus creates inconsistency within EU trade mark law.
9        By the second part of his sole ground of appeal, the appellant submits that the General Court erred in law in its assessment of the role played by the element ‘k water’ in the mark applied for. The General Court, according to the appellant, examined that element separately from the global context of the mark and found that, considered in isolation, that element was not descriptive. In that connection, the appellant points out the need for an overall assessment, relying on the judgment of 30 May 2018 in Tsujimoto v EUIPO (C‑85/16 P and C‑86/16 P, EU:C:2018:349, paragraphs 58 and 59), according to which the General Court is required to rule on how consumers understand the element ‘k water’ in the light of the mark taken as a whole.
10      According to the appellant, the General Court thus infringed Article 8(1)(b) of Regulation 2017/1001, which undermines the unity of EU trade mark law. In that connection, he claims that, if trade mark decisions were to be based on an isolated assessment of the constituent elements of a mark, without placing them in the context of the mark as a whole, that would risk making the judicial practice entirely arbitrary.
11      By the third part of his sole ground of appeal, the appellant alleges that the General Court, in paragraph 66 of the judgment under appeal, incorrectly applied the decisive criteria for assessing the likelihood of confusion. Although the General Court found that the goods in question are identical, that the marks at issue display, at least, a low degree of visual and phonetic similarity and that the earlier mark is of average distinctiveness, it nevertheless rejected the possibility that there might be any likelihood of confusion, without providing detailed reasons.
12      By the fourth part of his sole ground of appeal, the appellant submits that, in paragraph 68 of the judgment under appeal, the General Court denied the average distinctiveness of the earlier mark, relying on the fact that individual letters cannot enjoy a monopoly. All types of marks are to be treated in the same way.
13      According to the appellant, the General Court’s approach is likely to undermine the unity of the case-law, in so far as it has acknowledged, in a number of cases, the existence of a likelihood of confusion between marks consisting of a single letter despite differences in their representation, where, at the very least, the goods are identical, there is a low degree of similarity between the marks at issue and the earlier mark displays average distinctiveness. It is thus for the Court of Justice to establish guiding principles and procedures for assessing the likelihood of confusion with regard to marks consisting of a single letter.
14      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 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraph 20 and the case-law cited).
15      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 (see, inter alia, orders of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraph 21, and of 30 January 2023, bonnanwalt v EUIPO, C‑580/22 P, EU:C:2023:126, paragraph 11).
16      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 (see 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).
17      A request that an appeal be allowed to proceed which does not contain the information referred to 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).
18      In the present case, with regard to the four parts of the sole ground of appeal summarised in paragraphs 7 to 13 of this order, which can be examined together, it should be noted that, although the appellant identifies errors of law allegedly committed by the General Court, the fact remains that he does not explain to the requisite standard or, in any event, does not demonstrate how such errors of law, assuming they are established, raise questions which 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 8 November 2022, Mandelay v EUIPO, C‑405/22 P, not published, EU:C:2022:860, paragraph 16).
19      As regards the appellant’s argument based on the General Court’s disregard of its own case-law and of that of the Court of Justice, it must be recalled that a general claim that the General Court applied its own case-law or that of the Court of Justice incorrectly 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 and development of EU law; to that end, the appellant must comply with all the requirements set out in paragraph 16 of this order (see, by analogy, order of 6 April 2022, Sanford v EUIPO, C‑19/22 P, not published, EU:C:2022:262, paragraph 18 and the case-law cited).
20      It must be noted that, although the appellant specifies the paragraphs of the judgment under appeal and those of the rulings of the Court of Justice and the General Court alleged to have been infringed, he does not provide sufficient information regarding the similarity of the situations referred to in those rulings to make it possible to establish the existence of the contradiction relied on (order of 6 April 2022, Sanford v EUIPO, C‑19/22 P, not published, EU:C:2022:262, paragraph 19 and the case-law cited).
21      The appellant merely states that the General Court disregarded its own case-law or that of the Court of Justice in similar cases, without providing further elaboration.
22      In so far as the appellant’s line of argument seeks to call into question the factual assessments made by the General Court, it should be borne in mind that 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 17 October 2022, SFD v EUIPO, C‑383/22 P, not published, EU:C:2022:799, paragraph 15).
23      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.
24      In the light of all of the foregoing considerations, the request that the appeal be allowed to proceed must be refused.
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 they could have incurred costs, it is appropriate to decide that the appellant is to bear his own costs.
On those grounds, the Court (Chamber determining whether appeals may proceed) hereby orders:
1.      The appeal is not allowed to proceed.
2.      Mr Arne-Patrik Heinze shall bear his own costs.
Luxembourg, 11 May 2023.
A. Calot Escobar
L. Bay Larsen
Registrar
President of the Chamber determining whether appeals may proceed
*      Language of the case: English.