ORDER OF THE COURT (Chamber determining whether appeals may proceed)

6 April 2022 ( )

(Appeal – Community design – 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‑19/22 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 10 January 2022,

Sanford LP, established in Atlanta, Georgia (United States), represented by J. Zecher, Rechtsanwalt,

appellant,

the other parties to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

Avery Zweckform GmbH, established in Oberlaindern, Valley (Germany),

intervener at first instance,

THE COURT (Chamber determining whether appeals may proceed)

composed of L. Bay Larsen, Vice-President of the Court, N. Jääskinen and M. Safjan (Rapporteur), Judges,

Registrar: A. Calot Escobar,

having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, L. Medina,

makes the following

Order

1 By its appeal, Sanford LP asks the Court of Justice to set aside the judgment of the General Court of the European Union of 10 November 2021, Sanford v EUIPO – Avery Zweckform (Labels) (T‑443/20, EU:T:2021:767; ‘the judgment under appeal’), by which the General Court dismissed its action for annulment of the decision of the Third Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 15 May 2020 (Case R 2413/2018‑3), concerning invalidity proceedings between Avery Zweckform and Sanford.

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 that statute 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 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’s decision on the request that the appeal be allowed to proceed is to be taken as soon as possible and is to take 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 the single ground relied on in support of its appeal, alleging infringement of Article 25(1)(b) and Article 6(1)(a) of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1), are significant with respect to the unity, consistency or development of EU law.

7 That ground of appeal is in two parts.

8 As regards the arguments relating to the first part, the appellant submits, in the first place, that, in paragraphs 88, 90 and 98 of the judgment under appeal, the General Court erred in law in finding that the informed user has detailed technical expertise. That interpretation disregards the case-law of the Court of Justice and the General Court, according to which the informed user does not have detailed technical expertise and cannot distinguish between characteristics dictated by a technical function of a product and those which are arbitrary, thus raising an issue that is significant with respect to the unity and consistency of EU law. The significance of that issue goes beyond the present case because the question of the informed user’s technical knowledge arises in all cases in which it is necessary to assess the relevance and importance of the technical elements for the overall impression produced by a design.

9 In the second place, the appellant claims, first of all, that, by holding, in paragraphs 93 and 98 of the judgment under appeal, that the informed user does not pay particular attention to features which are perceived as not being technically necessary, the General Court departed from its case-law according to which only features excluded from protection are not taken into account by the informed user when comparing the overall impression produced by two designs. That issue is of importance for the development of EU law, in so far as the Court has not yet had the opportunity to give a ruling in that regard. Furthermore, according to the appellant, the attention paid by the informed user to features which are perceived as not being technically necessary is an issue that arises in all cases in which it is necessary to assess the relevance and importance of the technical elements for the overall impression produced by a design.

10 Next, the appellant submits that, by holding, in paragraphs 88 and 95 of the judgment under appeal, that the informed user does not take account of the designer’s intention when assessing whether a feature is technically necessary, the General Court departed from the case-law of the Court of Justice stemming from the judgment of 8 March 2018, DOCERAM (C‑395/16, EU:C:2018:172, paragraph 26). According to the appellant, the considerations which determined the designer’s choice are the decisive factor in assessing whether a feature of the appearance of a product is technically necessary. The issue raised is significant with respect to the unity and consistency of EU law because the General Court disregarded the case-law of the Court of Justice in similar cases. Furthermore, the relevance of the designer’s considerations for assessing whether features must be regarded as technically necessary is an issue which arises in all cases concerning the assessment of the relevance and importance of the technical elements for the overall impression produced by a design.

11 Lastly, the appellant submits that, by considering that the informed user is unaware of the existence of other designs when assessing whether a feature is technically necessary, the General Court disregarded the case-law of the Court of Justice according to which the designer’s considerations are the decisive factor in assessing whether a feature of the appearance of a product is to be regarded as technically necessary and whether the existence of other designs is relevant to the assessment of those considerations. That failure to have regard to the case-law is an issue that is significant with respect to the unity and consistency of EU law, which arises in all cases in which it is necessary to assess the relevance and importance of the technical elements for the overall impression produced by a design.

12 In the third place, the appellant claims that, in paragraphs 80 and 82 of the judgment under appeal, the General Court erred in finding that the informed user completely ignores the features of the designs which are perceived as indicating the origin of the products. That interpretation is contrary to the case-law of the Court of Justice and the General Court, according to which the informed user perceives all the features of a design, even if he or she does not attach much importance to some of them, and also perceives features which are seen as decorative, even if they are less important for the overall impression. The failure to have regard to that case-law raises an issue that is significant with respect to the unity and consistency of EU law. If the Court of Justice were to consider the earlier case-law to be inapplicable, it would be necessary to clarify EU law because of the difficulties which the General Court appears to encounter in resolving the various aspects of the question.

13 As regards the argument relating to the second part, the appellant complains that the General Court erred in holding that only the differences to which the informed user pays attention and which give rise to particular attentiveness on his or her part contribute to the overall impression of the designs to be compared. Thus, it disregarded its case-law, derived from the judgment of 21 May 2015, Senz Technologies v OHIM – Impliva (Umbrellas) (T‑22/13 and T‑23/13, EU:T:2015:310, paragraph 57), according to which, when the designer’s freedom is limited, it is likely that small differences will be sufficient to produce a different overall impression. The appellant considers that the issue of the degree of difference necessary and the ways in which that degree is to be determined, which arises in all cases concerning the assessment of the overall impression produced by a design, has not yet been examined by the Court of Justice and, consequently, requires its intervention.

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 It must also be noted that, 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 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 (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, 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 (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 22 February 2022, Sony Interactive Entertainment Europe v EUIPO, C‑679/21 P, not published, EU:C:2022:109, paragraph 15 and the case-law cited).

18 In the present case, as regards the arguments raised in paragraphs 6 to 13 of the present order, by which the appellant criticises the General Court for having disregarded the case-law of the Court of Justice and its own case-law, 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 the present order (see, by analogy, orders of 13 October 2020, Abarca v EUIPO, C‑313/20 P, not published, EU:C:2020:821, paragraph 17, and of 22 February 2022, Sony Interactive Entertainment Europe v EUIPO, C‑679/21 P, not published, EU:C:2022:109, paragraph 17).

19 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, it 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 (see, to that effect, orders of 13 February 2020, Confédération nationale du Crédit Mutuel v Crédit Mutuel Arkéa, C‑867/19 P, not published, EU:C:2020:103, paragraph 18, and of 17 December 2020, Brands Up v EUIPO, C‑404/20 P, not published, EU:C:2020:1058, paragraph 20).

20 The appellant merely states that the General Court disregarded its own case-law or that of the Court of Justice in similar cases and that those cases are based on premisses which are the opposite of those on which the judgment under appeal is based.

21 As regards the arguments set out in paragraphs 9, 12 and 13 of the present order, relating to the absence of case-law of the Court concerning the attention paid by the informed user to the features perceived as not being technically necessary or as indicating the origin of the product, and the differences which would contribute to the overall impression of the designs to be compared, it should be borne in mind that the fact that an issue of law has not been examined by the Court does not mean that that issue is necessarily one of significance with respect to the development of EU law, as the appellant is still required to demonstrate that significance by providing detailed information regarding not only the novelty of that issue but also the reasons why the issue is significant in relation to such development (see, to that effect, order of 24 February 2022, Sony Interactive Entertainment Europe v EUIPO, C‑678/21 P, not published, EU:C:2022:141, paragraph 23 and the case-law cited). However, that significance is not apparent from the present request since the appellant merely makes a general assertion that the issues in question have not yet been subject to review by the Court.

22 Furthermore, it should be pointed out that although the appellant claims that its appeal raises an issue that is likely to arise in all cases concerning the assessment of the relevance and importance of the technical elements for the overall impression produced by a design and the assessment of the overall impression produced by a design, it must be pointed out not only that this is merely an argument of a general nature which is not such as to justify the appeal being allowed to proceed, but also that the fact that an issue might concern a large number of cases cannot clearly be regarded as relevant for the purpose of establishing the legal significance of the issue with respect to the unity, consistency or development of EU law (see, to that effect, order of 4 May 2021, Dermavita v EUIPO, C‑26/21 P, not published, EU:C:2021:355, paragraph 21 and the case-law cited).

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, the appeal should not be allowed to proceed.

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 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. Sanford LP shall bear its own costs.

Luxembourg, 6 April 2022.

A. Calot Escobar L. Bay Larsen