ORDER OF THE COURT (Chamber determining whether appeals may proceed)
24 February 2022 (*)
(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‑678/21 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 10 November 2021,
Sony Interactive Entertainment Europe Ltd, established in London (United Kingdom), represented by S. Malynicz QC, Barrister and M. Maier, Rechtsanwalt,
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, S. Rodin and O. Spineanu-Matei (Rapporteur), Judges,
Registrar: A. Calot Escobar,
having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, J. Richard de la Tour,
makes the following
Order
1        By its appeal, Sony Interactive Entertainment Europe Ltd asks the Court of Justice to set aside the judgment of the General Court of the European Union of 1 September 2021, Sony Interactive Entertainment Europe v EUIPO – Wong (GT RACING) (T‑463/20, not published, EU:T:2021:530; ‘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 8 May 2020 (Case R 1612/2019‑4), concerning revocation proceedings between Mr Wong and Sony Interactive Entertainment Europe.
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 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 of Justice to rule on that request.
5        In accordance with Article 170b(1) and (3) of those rules, 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 its request that the appeal be allowed to proceed, the appellant submits that its appeal raises an issue that is significant with respect to the unity, consistency or development of EU law.
7        The appellant alleges infringement of Article 8(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), in that the General Court committed several errors.
8        In that regard, the appellant states, in essence, that the first ground of appeal alleges an error in the determination of the relevant public. The General Court did not engage on the criterion concerning the overlapping public and thus failed to take account of the wording of the goods covered by the earlier mark, which is more specific than the wording of the goods covered by the later mark, and took into account an essentially abstract consumer, namely the general public consuming everyday goods. Consequently, it ignored two orders in which it held that the appellant’s action was manifestly well founded on that point.
9        Furthermore, the appellant complains that the General Court focused on the average consumer’s level of attention without taking into account the way in which that consumer perceives the earlier mark.
10      In particular, the appellant claims that the General Court gave precedence to its own perception of the earlier mark, ignoring that of the average consumer. The appellant complains that the General Court disregarded the evidence which it had submitted in that regard, on the ground that it should not be taken into consideration when determining the average consumer’s perception of the earlier mark. According to the appellant, that determination should not be made in the abstract, since there is no such thing as an abstract consumer. Adopting the viewpoint of a different class of consumer or the general public ‘to be on the safe side’ is also wrong.
11      The approach adopted by the General Court in the judgment under appeal would lead to a perverse situation in which, despite a likelihood of confusion due to the fame and reputation of the earlier mark, such a likelihood would be ruled out by the arbitrary decision of the General Court, which chose to ignore the evidence of the average consumer’s perception of that mark.
12      Thus, its appeal raises two issues, which relate, in essence, first, to the need for the court to determine the relevant public having regard to the wording of the most specific goods or services and, secondly, to any obligation on the part of the court to examine the evidence relating to the average consumer’s perception of the earlier mark. According to the appellant, the appeal is significant because there is no case-law of the Court of Justice on the approach that should be taken at the very first stage of many trade mark cases, in the light of that second issue.
13      The fourth ground of appeal alleges that, because of the errors which are the subject of the first, second and third grounds of appeal, the General Court wrongly dismissed the action under Article 8(1)(b) of Regulation No 207/2009. The fifth ground of appeal alleges an error in the assessment of the similarity of the goods.
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, order of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraph 21 and the case-law cited).
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, 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 (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 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 (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, it must be held that the appellant’s line of argument in support of its request that the appeal be allowed to proceed, summarised in paragraphs 6 to 13 above, is not, in itself, sufficient to establish that the appeal raises an issue that is significant with respect to the unity, consistency or development of EU law, since the appellant did not comply with all the requirements set out in paragraph 16 above.
19      In the first place, it should be noted that, in its request that the appeal be allowed to proceed, the appellant does not set out the second and third grounds of appeal, nor does it identify the points of law to which they relate. Therefore, it must be held that, in that regard, the appellant did not comply with all the requirements referred to in paragraph 16 above.
20      In the second place, as regards the arguments summarised in paragraphs 8 to 12 above, it should be noted that, although the appellant identifies – albeit in a somewhat vague manner – the errors of law allegedly committed by the General Court, the fact remains that, in any event, it does not set out the specific reasons why such errors, even if established, raise issues that are significant with respect to the unity, consistency or development of EU law that would justify the appeal being allowed to proceed.
21      As regards the first issue of law which, as stated in paragraph 12 above, relates to the determination of the relevant public, the appellant not only failed to identify the orders which the General Court disregarded and to indicate how the General Court’s assessments are inconsistent with those orders, but also failed to explain why the error allegedly committed by the General Court, even if established, raises an issue that is significant with respect to the unity, consistency or development of EU law that would justify the appeal being allowed to proceed.
22      As regards the second issue of law which, as recalled in paragraph 12 above, concerns, in essence, any obligation on the part of the court to examine the evidence relating to the average consumer’s perception of the earlier mark, the appellant merely submits that its appeal is, on that point, important because of the lack of case-law of the Court of Justice concerning the approach to be adopted.
23      It must be borne in mind that the fact that an issue of law has not been examined by the General Court or by the Court of Justice does not, however, mean that that issue is necessarily one of significance with respect to the development of EU law, as the person requesting that an appeal be allowed to proceed remains bound to demonstrate that significance by providing detailed information regarding not only the novelty of that issue, but also the reasons for that issue’s significance in relation to the development of EU law (order of 13 December 2021, Asolo and WeMO Brands v EUIPO, C‑387/21 P, not published, EU:C:2021:1009, paragraph 27 and the case-law cited).
24      Therefore, it must be held that, as regards the appellant’s line of argument relating to the two issues of law on which it relies, it did not comply with all the requirements referred to in paragraph 16 above.
25      In the third place, as regards the arguments set out in paragraph 13 above, it should be noted that the appellant does not sufficiently identify the errors of law allegedly committed by the General Court to which the fourth and fifth grounds relate. It merely states that the fourth ground of appeal alleges that, because of the error committed by the General Court to which the first, second and third pleas relate, the General Court wrongly dismissed the action under Article 8(1)(b) of Regulation No 207/2009. With regard to the fifth ground of appeal, it merely states that the similarity of the products is clearly established. Therefore, it must be held that, in that regard, the appellant did not comply with all the requirements referred to in paragraph 16 above.
26      In those circumstances, it must be held that the appellant’s request is not capable of establishing that the appeal raises issues that are significant with respect to the unity, consistency or development of EU law.
27      In the light of all the foregoing considerations, the request that the appeal be allowed to proceed must be refused.
Costs
28      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.
29      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.      Sony Interactive Entertainment Europe Ltd shall bear its own costs.
Luxembourg, 24 February 2022.
A. Calot Escobar
L. Bay Larsen
Registrar
President of the Chamber determining whether appeals may proceed
*      Language of the case: English.